17-008143 v Aviva Insurance Canada, 2018 CanLII 112122

Date: 2018-08-22

Tribunal File Number: 17-008143/AABS

Case Name: 17-008143 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:

Applicant

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the Applicant: Piera A. Segreto, Counsel

For the Respondent: Amanda Fowler, Counsel

Combination Hearing: Oral Portion held June 7, 2018

with Written Submissions in advance

OVERVIEW:

1The applicant is a plumber and construction worker. He had been laid off several days prior to an accident on September 5, 2016 (“the accident”). While riding his electric bike he was struck by a vehicle and thrown to the ground, striking his head. When the applicant attended at the hospital on September 7, 2016, he was complaining of left rib cage pain and x-rays later indicated that he had fractured two ribs in the accident. The applicant did not return to work for an extended period of time following the accident.

2The applicant claimed benefits from Aviva Insurance Canada (“the respondent”) pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). When some of those benefits were denied, the applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (“the Tribunal”). The parties were unable to resolve their dispute at a case conference and the matter proceeded to a combination hearing, with written submissions filed in advance of cross-examination of the applicant at a hearing by teleconference.

3The applicant submits that he is entitled to income replacement benefits. He also submits that he continues to suffer from impairments as a result of the accident and that he requires ongoing treatment and assessments.

4The respondent disputes that the applicant meets the eligibility criteria for income replacement benefits. The respondent submits that the applicant does not suffer from any ongoing impairment from accident related injuries and that the treatment and assessment plans in dispute are not reasonable and necessary.

ISSUES IN DISPUTE:

5The following issues are in dispute before the Tribunal:

(1) Is the applicant entitled to receive a weekly income replacement benefit in the amount of $400.00 from November 13, 2016 to date and ongoing?

(2) Is the applicant entitled to the cost of examination in the amount of $1,297.25 for an in-home occupational therapy assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by New Age Specialized Assessment, submitted on October 27, 2017 and denied on November 9, 2017?

(3) Is the applicant entitled to the cost of examination in the amount of $2,800.00 for a chronic pain assessment pursuant to a Treatment and Assessment Plan (OCF-18) completed by New Age Specialized Assessment, submitted on October 27, 2017 and denied on November 9, 2017?

(4) Is the applicant entitled to the cost of examination in the amount of $2,850.00 for an orthopaedic assessment¹ pursuant to a Treatment and Assessment Plan (OCF-18) completed by New Age Specialized Assessment, submitted on October 27, 2017 and denied on November 9, 2017?

(5) Is the applicant entitled to the medical benefit in the amount of $2,947.00 for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by New Age Specialized Assessment, submitted on October 27, 2017 and denied on November 9, 2017?

(6) Is the applicant entitled to an award for unreasonably withheld or delayed payments under Section 10 of Ontario Regulation 664, R.R.O. 1990 (“O. Reg. 664”)?

(7) Is the applicant entitled to interest on the overdue payment of income replacement benefits?

RESULT:

6After considering the parties’ submissions, the documentary evidence, and the oral evidence of the applicant given at the cross examination on his Affidavit sworn May 2, 2016 (“Affidavit”), and for the reasons that follow, I find that the applicant is not entitled to any of the benefits claimed.

PROCEDURAL ISSUES:

Objections by the applicant to the admissibility of evidence filed with the Respondent’s Written Submissions

7In the Applicant’s Reply Submissions, the applicant requests that all documentation submitted by the respondent be ruled inadmissible, as it has not been sworn and therefore lacks credibility and is unreliable, or alternatively, that it should be given no weight as it has not been authenticated. The applicant also submits that no weight should be given to statements reported to have been made to assessors and referenced in their written reports.

8The Tribunal’s Order dated March 9, 2018 notes that the parties agreed to a combination hearing with written submissions in advance of the cross-examination of the applicant at a hearing by teleconference. That Order also notes that the parties agreed that the expert evidence could be submitted by reports and that clinical notes and records referred to in submissions would be filed. The applicant’s requests described in paragraph 6 are denied as production and use of these relevant documents was contemplated and agreed to by the parties when the combination hearing was scheduled.

Objections by the applicant to admissibility of Respondent’s Reply Submissions and documents filed after receipt of the Applicant’s Reply Submissions

9At the commencement of the teleconference portion of the hearing on June 7, 2018, applicant’s counsel objected to me reading the Respondent’s Reply Submissions and objected to the admissibility of those submissions and documents the respondent had filed on June 6, 2018. I advised that I needed to review those Submissions before hearing submissions on their admissibility and I did so.

Admissibility of Respondent’s Reply Submissions

10Applicant’s counsel submitted that because the Tribunal’s Order dated March 9, 2018 did not state that the respondent was entitled to file Reply Submissions; the respondent was not entitled to do so without leave and that by filing the same the respondent had tarnished the Tribunal file. Applicant’s counsel alleged that there was prejudice to the applicant as the applicant had no opportunity to respond to the Respondent’s Reply Submissions.

11Respondent’s counsel submitted that after reviewing the Applicant’s Reply Submissions she felt it was necessary to respond, submitting that applicant’s counsel made allegations of sharp practice and alleged that respondent’s counsel had breached the Tribunal’s Order dated March 9, 2018 (which had ordered that the clinical notes and records of the insurer’s examiners be provided to the applicant). Respondent’s counsel argued that it was also necessary to respond to the applicant’s request to have the respondent’s documentary evidence ruled to be inadmissible as the respondent had acted in accordance with the Tribunal’s Order.

12The Applicant’s Reply Submissions alleged that “despite multiple requests from the Applicant” the clinical notes and records from the insurer assessors who authored reports had not been provided. It was alleged that this prevented the applicant from engaging in the fundamental right of full disclosure and informed cross-examination. The Applicant’s Reply Submissions also alleged that the Respondent’s Written Submissions were “Inaccurate or Misleading” and “unreliable”.

13The Respondent’s Reply Submissions addressed (1) the applicant’s evidentiary argument referred to above; and (2) the applicant’s allegations that the Respondent had not provided the applicant with the clinical notes and records from the insurer assessors who authored reports.

14With regards to the applicant’s submissions relating to the admissibility of evidence, the Respondent’s Reply Submissions attached, referred to and relied upon the Tribunal’s Order dated March 9, 2018.

15With regards to the applicant’s allegation regarding the respondent’s failure to provide the clinical notes and records from the insurer assessors who authored reports, the respondent attached two covering emails to applicant’s counsel which stated that the clinical notes and records of the insurer assessors had been attached. Only the covering emails were filed.

16At the teleconference portion of the hearing, I asked Applicant’s counsel to provide further details regarding the alleged failure by the respondent to provide the requested clinical notes and records, in light of the covering emails provided by respondent’s counsel. Applicant’s counsel acknowledged that she had received those emails and the attached documentation but she stated that she did not feel they were complete. When asked whether she had brought a motion alleging a breach by the applicant of the Tribunal’s Order, she indicated that she did so in the Reply Submissions.

17After considering the submissions I ordered that the Respondent’s Reply Submissions are admissible. As a result of the nature of the allegations made in the Applicant’s Reply Submissions, and in particular because applicant’s counsel confirmed that those Submissions were alleging that the respondent had breached the Tribunal’s Order, the respondent was entitled to make submissions in response thereto. As the applicant was given the opportunity to reply to the Respondent’s Reply Submissions at the oral portion of the hearing, there was no prejudice to the applicant.

Admissibility of the Documents filed by the Respondent on June 6, 2018

18In addition to the Respondent’s Reply Submissions, the respondent also filed the following documents on June 6, 2018:

(a) Copies of all of the Treatment and Assessment Plans (OCF-18s) that are in issue in this application; and

(b) Copies of 5 documents from the material filed with the parties’ Written Submissions that the respondent intended to put to the applicant during cross-examination.

19After the ruling on the admissibility of the Respondent’s Reply Submissions at the teleconference portion of the hearing, the applicant withdrew the objection to the admissibility of the above-noted documents.

June 25, 2018 Order Requesting Further Documents and Information

20As the applicant had not filed copies of the Treatment and Assessment Plans (OCF-18s) in issue in this application, and as it appeared that the copies filed by the respondent on June 6, 2018 may be incomplete, by Order dated June 25, 2018 the applicant was directed to file copies of the complete Treatment and Assessment Plans (OCF-18s) in issue. Copies of those Treatment and Assessment Plans (OCF-18s) were subsequently filed by the applicant and it is those Treatment and Assessment Plans (OCF-18s) that were relied upon and referred to in this Decision.

ANALYSIS:

Income Replacement Benefit

21Section 5 of the Schedule sets out the eligibility criteria that the applicant must meet in order to be entitled to income replacement benefits.

22To be entitled to income replacement benefits the applicant must demonstrate that one of the following threshold conditions, set out in Section 5(1) of the Schedule, has been satisfied:

(a) that he was employed at the time of the accident; or

(b) if he was not employed at the time of the accident:

i. that he had been employed for at least 26 weeks during the 52 weeks prior to the accident; or

ii. that he was receiving Employment Insurance (“EI”) benefits at the time of the accident; or

(c) that he was self-employed at the time of the accident.

23If the applicant meets one of these threshold conditions, the applicant must also establish that he suffered a substantial inability to perform the essential tasks of either his employment, the employment in which he spent the most time during the 52 weeks prior to the accident, or his self-employment.

Is the applicant entitled to receive a weekly income replacement benefit?

24I find that the applicant is not entitled to income replacement benefits as I find, for the reasons set out below, that he was not employed, self-employed or in receipt of EI benefits at the time of the accident, nor had he worked 26 of the 52 weeks prior to the accident.

The applicant was not employed at the date of the accident.

25On August 27, 2016 the applicant was laid off. The applicant confirmed in his Affidavit and in his oral testimony that he was not working on September 5, 2016, the day of the accident.

26The applicant submitted that although he was not working on September 5, 2016, he had only been laid off by [his employer] and not terminated, and therefore was still employed at the date of the accident for the purpose of Section 5 of the Schedule. This argument was not accepted for the following reasons. The word “employed” is not defined in the Schedule and the applicant provided no authority to support the interpretation submitted. When the nature of the applicant’s employment and employment history is considered, there is insufficient evidence to support a finding that the applicant was employed at the date of the accident. The applicant’s employment records and his testimony confirm that he typically worked for a number of different employers in any given year, and that typically he had periods of layoff between jobs, during which times he often received EI benefits. The applicant did not have an ongoing employment relationship with [his employer] or any other employer at the time of the accident. The applicant stated in his Affidavit sworn May 2, 2018 (the “Affidavit”), at paragraph 8, that:

“I am usually a seasonal and temporary worker… I often rely on the union to help me locate temporary work…I often work for many different employers over the course of a year, sometimes I find short term work with companies I have worked with in the past.”

27In this case there is no evidence of an ongoing employment relationship with [his employer], nor is there evidence that the applicant’s “lay-off” is anything other than the end of his employment with [his employer]. I find that the applicant was not employed at the time of the accident.

The applicant had not been employed for at least 26 weeks during the 52 weeks prior to the accident.

28Copies of the Records of Employment (ROEs) from the employers the applicant had worked for in the 52 weeks prior to the accident were filed and establish that the applicant worked fewer than 26 weeks in that 52 week period. The applicant did not dispute the information contained in the ROEs.

29Applicant’s counsel submitted that the applicant need only be employed, and not actually working, to qualify for income replacement benefits and relies on the Employer’s Confirmation Form completed by [his employer]. The applicant’s submissions indicate that [his employer] is also known as [company name]. [His] Employer’s Confirmation Form states that the period of the applicant’s employment with [his employer] was from September 22, 2014 to April 22, 2016. The applicant argues that this establishes that the applicant was employed for at least 26 weeks in the 52 weeks prior to the accident.

30The documents in [his employer]’s employment file indicate that the applicant worked for [the company] from September 22, 2014 to October 28, 2014. The 2014 ROE from [the company] indicates that the reason for issuing the ROE was “Shortage of work/End of contract or season” and the expected date of recall is stated to be “unknown”. The applicant did not work for [the company] again until he worked there from March 23, 2016 to April 22, 2016. Although the [employer] file does refer to the applicant being “laid off” in 2014 and his reinstatement in 2016, the file also contains new employee information sheets and documentation in both 2014 and 2016.

31When [his] Employer’s Confirmation Form is read in its entirety and together with the [employer] employment file documents, and when it is considered in the context of the applicant’s EI file and other ROEs, the nature of the applicant’s employment in the construction industry, and the applicant’s evidence as outlined in paragraph 25, I find that there is insufficient evidence the find an ongoing employment relationship with [his employer]/[the company] from September 22, 2014 to April 22, 2016.

32The applicant has not established, on the balance of probabilities, that he was, employed for at least 26 weeks during the 52 weeks prior to the accident.

The applicant was not receiving EI benefits at the time of the accident.

33The applicant applied for EI benefits on September 12, 2016. The EI documents confirm that the applicant began receiving EI benefits on November 27, 2016.

34The applicant, in his Affidavit, indicates that but for the accident, he would have applied for EI on September 5, 2016, but that because of the accident he could not apply until September 12, 2016. There is no evidence that the short delay in applying for EI benefits affected the applicant’s entitlement to receive EI benefits commencing on or before September 5, 2016. The EI documents state that the applicant was “not on claim” from March 20, 2016 until November 26, 2016. The applicant had no explanation for why he did not start receiving EI benefits until November 26, 2016.

35It was the applicant’s evidence that he had an “open EI claim at the time of the accident”. Even if the applicant had an open EI claim, based on the evidence presented, the applicant was not receiving EI benefits at the time of the accident on September 5, 2016.

The applicant was not self-employed at the time of the accident.

36The applicant submits that if the Tribunal finds that the applicant was neither employed nor receiving EI benefits at the time of the accident, then the Tribunal should find that the applicant was self-employed within the meaning of the Schedule.

37Section 3(1) of the Schedule defines “self-employed person” to mean a person who:

(a) engages in a trade, occupation, profession or other type of business as a sole proprietor or as a partner, other than a limited partner, of a partnership, or

(b) is a controlling mind of a business carried on through one or more private corporations some or all of whose shares are owned by the person.

38There is no evidence to support a finding that the applicant was self-employed at the time of the accident. All of the evidence, including the applicant’s own testimony, the information contained in his application for EI, his income tax returns and his ROEs, confirms that when he worked prior to the accident he did so as an employee and not as a self-employed sole proprietor, partner or as a controlling mind of a corporation.

39I find that the applicant was not self-employed at the time of the accident.

Finding on entitlement to income replacement benefits

40The applicant is not entitled to income replacement benefits as the applicant has not met his onus of proving, on a balance of probabilities, that he meets any of the eligibility conditions for income replacement benefits. The evidence does not support a finding that the applicant was employed, in receipt of EI benefits or self-employed at the time of the accident, nor does the evidence establish that the applicant had worked 26 of the 52 weeks prior to the accident.

41As the applicant has failed to establish that he meets one of these threshold conditions, it is not necessary to consider whether or for how long the applicant suffered a substantial inability to perform the essential duties of his pre-accident employment.

42Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.

43The applicant bears the onus of proving, on a balance of probabilities, that the specific benefits claimed are reasonable and necessary as a result of the accident.

Reliability of the Applicant’s Evidence Regarding the Injuries Related to the Accident

44When the applicant was cross-examined on June 7, 2018, it appeared that he was attempting to answer the questions asked to the best of his ability, but it was also apparent that he struggled recalling many details, and in particular, those related to when various events occurred. For example, the applicant could not advise when many of his injuries had resolved.

45Some of the evidence contained in the applicant’s Affidavit was unclear and/or misleading. The applicant’s affidavit evidence on a number of points was clarified or corrected during cross-examination on June 7, 2018. For example:

(a) In paragraph 7 the applicant states that “in addition to pain in my left side from my ribs, I am also experiencing pain in my head and my jaw, pain in my neck which is worse on the left side, pain in my shoulders which is worse on the left side and my right arm, pain in my back and my legs, …” [emphasis added]. On cross-examination the applicant stated that paragraph 7 referred to his complaints at the time of the accident. Paragraph 7 did not reflect the applicant’s complaints as of the May 2, 2018 when his Affidavit was sworn.

(b) The applicant acknowledged during cross-examination, that “pretty much” all of his injuries had resolved as of June 7, 2018 and that his only ongoing complaints are that he gets a “fuzzy pain/fuzzy feeling on the right side of his head” sometimes when he reads, that his left shoulder makes a clicking sound, and that he cannot carry a pipe on his left shoulder.

(c) In paragraph 24 the applicant states that “I continue to feel pain in my neck, left shoulder, left ribs and low back. I continue to experience headaches and have trouble sleeping due to pain. I sometimes have issues with my memory and my concentration.” On cross-examination the applicant stated that paragraph 24 did not describe his condition on June 7, 2018, but he did not provide clarification of when some of those complaints resolved.

46The applicant’s oral evidence regarding his medical condition at the time of his cross-examination on June 7, 2018 was clear. As outlined above, some of the information in the applicant’s Affidavit was unclear and misleading. For these reasons, the evidence contained in his Affidavit and his oral evidence, other than he oral evidence regarding his condition at the time of his cross-examination on June 7, 2018, has been given little to no weight unless corroborated by other evidence.

The Applicant’s Accident Related Injuries

47In order to determine if the assessments and physiotherapy treatment sought are reasonable and necessary, the nature and extent of the injuries sustained by the applicant as a result of the accident must be considered.

48The applicant suffered psychological injuries in the accident and psychological treatment was approved in August 2017. Claims related to the applicant’s psychological injuries are not issues in dispute in this application.

49For the reasons that follow, I find that in the September 5, 2016 accident the applicant fractured two left ribs and sustained related soft tissue injuries which had substantially resolved by about July 2017. I also find that there is no evidence linking the applicant’s complaints made in and after July 2017, including his ongoing complaints regarding the feeling in the right side of his head and issues relating to his left shoulder, to the accident.

50The records of [the hospital] indicate that when the applicant attended at the Emergency Department on September 7, 2016, two days after the accident, he was complaining of left rib pain and pain on the “left flank side of his torso” that increased with deep respirations. He had abrasions on his leg, back and arms and dried matted blood on his head. X-rays were done and the applicant was discharged home that same day with pain medication. A Diagnostic Imaging Report from the [hospital] dated September 9, 2016 notes that the applicant fractured two of his left ribs. A CT scan of the applicant’s head was done on September 9, 2016. In his Affidavit at paragraph 4, the applicant states that the CT scan of his head “came back normal”.

51The clinical notes and records (CNRs) of the applicant’s family doctor, Dr. Sheffield (“family doctor”), were filed by the respondent. A handwritten notation on those records indicates that they are the CNRs from September 2013 to January 2017. The CNRs indicate that the applicant first visited his family doctor on October 5, 2016, about one month after the accident. The CNRs of that visit indicate that the applicant told his family doctor about the accident and that his left ribs were sore and that coughing or sneezing caused pain. The applicant was advised to apply heat and ice and to continue with his medication. The applicant returned on October 14, 2016 at which time he reported that his rib pain was much improved. On December 9, 2016, when his family doctor examined the applicant, he noted that the applicant had tender ribs. No other accident related injuries or complaints were noted in any of the CNRs of the family doctor that were filed.

52When the family doctor completed a Disability Certificate (OCF-3) on December 9, 2016, the only injuries referred to by him were the applicant’s two fractured left ribs. The family doctor indicated that although the applicant was substantially unable to perform the essential tasks of his pre-accident employment, he could return to modified hours and/or duties. He also noted that the applicant did not suffer a substantial inability to perform the housekeeping and home maintenance that he normally performed prior to the accident, and that no further examinations, investigations or consultations were contemplated or required.

53In a letter dated July 18, 2017, the family doctor addresses the applicant’s two broken ribs and states that undisplaced rib fractures do not benefit from physiotherapy or chiropractic treatment, but only require time to heal. He indicates that the usual time frame for healing is 8-12 weeks. In that letter he also notes that:

“[the applicant] has reported slow healing and I believe that any residual pain is from another cause. As he was slowly progressing, a referral to a pain clinic was not implemented. This should be considered in the future and any other causes of ongoing pain should be investigated”.

No other accident related injuries or complaints were noted in that letter. No CNRs of the family doctor for the period after January 2017 were filed, nor is there any other evidence regarding the severity or nature of the slow healing or residual pain or the other “cause” or “causes” referred to by his family doctor. The evidence does not establish, on a balance of probabilities, that “any residual pain” reported by the applicant in July 2017 was accident-related. The family doctor’s comment that he believed that any residual pain was from another cause, supports the finding that the applicant’s accident-related injuries had substantially resolved by July 2017.

54Other than the family doctor’s July 18, 2017 letter, the only other evidence that sheds light on the applicant’s medical condition and accident-related injuries after December 9, 2016 are the applicant’s self-reports to various assessors and to the health care practitioners who completed the treatment and assessment plans in issue, as summarized below. For the reasons stated above, the applicant’s Affidavit evidence was not reliable with regards to the timing of the applicant’s various complaints.

(a) July 5, 2017 - During a psychological assessment the applicant is reported to have advised Dr. Vitelli, psychologist, that his major physical problems were severe neck, left shoulder and lower back pain. He also advised that he was unable to do light housework without help from his mother due to his pain and physical limitations, that he was unable to stand or walk for long distances due to leg pain, and that lifting and carrying items was difficult due to pain.

(b) July 17, 2017 - During an insurer’s psychological assessment by Mr. Salerno, psychologist, the applicant is reported to have advised that he was no longer taking any pain medication, that he was riding his bicycle every day, that he was currently looking for work, that he called his union hall every day and if a job as a plumber had been available at that time he would return to work, and that he had resumed his pre-accident housekeeping and home maintenance tasks.

(c) October 27, 2017 - All of the treatment and assessment plans in issue note that the applicant’s accident related injuries include: a number of psychological conditions, as well as multiple fractures of ribs, sprain and strain of shoulder joint, and sprain and strain of lumbar spine. They all also state that as a result of the accident the applicant was unable to complete his activities of daily living, including vocational, social and housekeeping and home maintenance tasks.

55The information regarding the applicant’s ongoing injuries and physical limitations in Dr. Vitelli’s report and in the treatment and assessment plans in dispute is in stark contrast to the information contained in the applicant’s family doctor’s CNRs and December 9, 2016 Disability Certificate and the information in Mr. Salerno’s report. The CNRs make no mention of complaints of any neck, left shoulder or lower back pain or any other accident related injuries at any time within the three months after the accident, other than complaints relating to sore left ribs. On December 9, 2016, when the family doctor examined the applicant he noted in his CNRs that the applicant had tender ribs. On December 9, 2016 the family doctor indicated on a Disability Certificate that the applicant did not suffer from a substantial inability to perform the housekeeping and home maintenance, which is consistent with the applicant’s self-reporting to Mr. Salerno of his ability to do so in July 2017.

56When the applicant was cross-examined on June 7, 2018, he stated that he had phoned his union every day looking for work, but he could not recall when he had started calling his union. The applicant is reported to have advised Mr. Salerno on July 17, 2017 that he had been calling his union daily and if a job as a plumber had been available at that time he would have returned to work. The consistency of this portion of the information reported by Mr. Salerno with the applicant’s own testimony regarding him having called the union every day, lends credibility to the other information reported to Mr. Salerno by the applicant, particularly as it is consistent with the information from the family doctor’s documentation. What was reported to Mr. Salerno is also consistent with what the applicant told Dr. Naaman, physiatrist, on March 3, 2018, namely that he had been unable to find work until November 2017 and that he returned to work for one month at that time and was then laid off. I find the information reported to Mr. Salerno regarding the applicant’s activities and him looking for work in July 2017 to be reliable and have given no weight to the contradictory information regarding the applicant’s condition in July 2017 contained in Dr. Vitelli’s report.

57Other than as referred to above, I did not find Dr. Naaman’s March 3, 2018 report or the April 12, 2018 report of Mr. Campos, physiotherapist, to be relevant to the issues in dispute, as, based on all of the evidence I find that the applicant’s accident-related injuries had resolved prior to either of their assessment being conducted.

58I find, based on a review of all of the evidence, that the applicant fractured two left ribs and suffered some soft tissue injuries in the accident and that his accident-related injuries had substantially resolved by July 2017, when he felt well enough to have been calling his union looking for work.

59I find that if the applicant was experiencing pain from sprain and strain of the shoulder joint and sprain and strain of lumbar spine, as was reported by the health care practitioners who completed the October 27, 2017 treatment and assessment plans in issue, there is insufficient evidence to establish that those conditions arose as a result of the accident. As well, there is insufficient evidence to establish that the applicant’s ongoing complaints of “fuzzy pain/fuzzy feeling on the right side of his head”, his left shoulder making a clicking sound and his inability to carry a pipe on his left shoulder, are related to his accident.

Is the applicant entitled to the cost of in-home occupational therapy, chronic pain and orthopaedic assessments?

60Section 25(1) of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.

61To establish that he is entitled to the cost of the in-home occupational therapy, chronic pain and orthopaedic assessments sought, the applicant must demonstrate that that there is a reasonable possibility that he has accident-related injuries or impairments that these assessments will investigate, and that the assessments sought are reasonable and necessary in the circumstances.

62Other than the treatment and assessment plans in dispute, the only other documentation that supports those plans is the July 5, 2017 Psychological Consultation Report of Dr. Vitelli, psychologist. In addition to his findings regarding the applicant’s psychological condition and recommended psychological treatment, Dr. Vitelli, states that the applicant would benefit from:

(a) a referral to an addiction clinic with regards to his substance abuse;

(b) an occupational therapy in-home assessment;

(c) an orthopaedic assessment to address injuries of an orthopaedic nature including fractured left side ribs;

(d) a chronic pain assessment; and

(e) in-home physiotherapy sessions.

63For the reasons outlined above, to the extent that the applicant was experiencing any problems in July 2017 or thereafter, the evidence does not support a finding that those problems were accident related. Dr. Vitelli’s recommendations are, therefore, not relevant in determining whether the treatment plans in dispute are reasonable or necessary for the treatment of accident related injuries.

64The assessment plans themselves do not provide evidence that supports the applicant’s claim to entitlement for the cost of the assessments sought for the following reasons. Each of the assessment plans states that the applicant’s complaints, injuries and sequelae that are a direct result of accident, include a number of psychological conditions, as well as multiple fractures of ribs, sprain and strain of shoulder joint, sprain and strain of lumbar spine. Each assessment plan goes on to state that “as a result of the accident the applicant is unable to complete his activities of daily living, including vocational, social and housekeeping and home maintenance tasks”. As outlined above, the evidence establishes that any impairment of the applicant’s ability to do housekeeping and home maintenance tasks resulting from the accident had resolved by December 2016 and that any accident-related injuries or impairments had resolved by July 2017. Accordingly, the assessment plans themselves, which are based on physical complaints and limitations found to be unrelated to the accident, do not support the applicant’s entitlement to payment for the same by the respondent. I find that an in-home assessment by an occupational therapist, recommended on October 27, 2017, is not reasonable and necessary. The applicant had returned to normal activities of daily living many months prior to October 2017, and did not require an in-home assessment at that time or at any time thereafter.

65I find that the chronic pain and the orthopaedic assessments recommended on October 27, 2017, are not reasonable and necessary. As outlined above, the applicant’s accident-related injuries had substantially resolved by July 2017. Although the applicant reported that his ribs were slow in healing and although he was complaining of pain in or about July 2017, in his July 18, 2017 letter the applicant’s family doctor notes that he believed that any residual pain was from another cause. The evidence does not support a finding that the applicant was suffering from accident-related pain in or after July 2017 and accordingly the chronic pain and orthopaedic assessments are not reasonable or necessary.

Is the applicant entitled to the cost of a treatment plan for physiotherapy services?

66To establish that he is entitled to the cost the physiotherapy treatment sought, the applicant must establish that the treatment plan for physiotherapy treatment is reasonable and that there is adequate evidence supporting the need for the treatment proposed.

67I find that the physiotherapy treatment plan recommended on October 27, 2017, is not reasonable and necessary. The applicant’s family doctor, in a letter dated July 18, 2017, addresses the applicant’s two broken ribs and states that undisplaced rib fractures do not benefit from physiotherapy or chiropractic treatment, but only require time to heal. That, together with the fact that the treatment plan recommended in-home physiotherapy when the applicant had returned to normal activities of daily living many months earlier, support a finding that the applicant did not require in-home or any physiotherapy as a result of the accident.

Is the applicant entitled to an award for unreasonably withheld or delayed payments under Section 10 of O. Reg. 664?

68The applicant submits that the respondent acted in bad faith in the adjustment of his claim by refusing to approve the treatment plans in dispute. The applicant further submits that as a result of the respondent’s refusal to make income replacement payments, the applicant suffered severe financial hardship.

69I have found that the applicant is not entitled to income replacement benefits and that none of the treatment and assessment plans are reasonable and necessary as a result of accident related injuries. Accordingly, the evidence does not support the applicant’s allegations that the respondent unreasonably withheld or delayed payments to the applicant.

Is the applicant entitled to interest on the overdue payment of income replacement benefits?

70As the applicant is not entitled to income replacement benefits, there are no overdue payments or interest owing.

ORDER

(1) The applicant is not entitled to income replacement benefits.

(2) The applicant is not entitled to the in-home occupational therapy assessment proposed in the treatment and assessment plan dated October 27, 2017.

(3) The applicant is not entitled to the chronic pain assessment proposed in the treatment and assessment plan dated October 27, 2017.

(4) The applicant is not entitled to the orthopaedic assessment proposed in the treatment and assessment plan dated October 27, 2017.

(5) The applicant is not entitled to the physiotherapy treatment proposed in the treatment and assessment plan dated October 27, 2017.

(6) The applicant is not entitled to an award under Ontario Regulation 664.

(7) The applicant is not entitled to interest.

Footnotes

1. 1In the Application, the service recommended in this treatment plan (OCF-18), in the amount of $2,850.00, was identified as a “Medical Service”. In the Case Conference Order dated March 9, 2018 it was described as an “in-home assessment”. Following a review of this OCF-18, the service recommended is more accurately described as an orthopaedic assessment and will be referred to as such in this Decision.