R.A. v. Allstate Canada, 2018 CanLII 115643

Date: 2018-10-10

Tribunal File Number: 17-005616/AABS

Case Name: 17-005616 v. Allstate Canada

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:

R.A.

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

Counsel for Applicant: Tina Yang

Counsel for the Respondent: Brittany Tinslay

Representative for the Respondent: Mary Spina

HEARD In Person: July 26, and 27, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on August 3, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

2The applicant was denied the benefits claimed by the respondent and submitted an application to the Licence Appeal Tribunal (“Tribunal”).

ISSUES IN DISPUTE

3The following issues are in dispute:

a. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the period from August 10, 2015 to August 23, 2017, and denied on February 5, 2016?

b. Is the applicant entitled to a medical benefit in the amount of $1,641.60 for chiropractic services recommended by Dr. Sal Viscomi, in a treatment plan submitted on March 16, 2016, and denied on April 5, 2016?

c. Is the applicant entitled to a medical benefit in the amount of $1,641.60 for chiropractic services recommended by Dr. Sal Viscomi, in a treatment plan submitted on November 21, 2016, and denied on December 15, 2016?

d. Is the applicant entitled to a medical benefit in the amount of $1,641.00 for chiropractic services recommended by Dr. Sal Viscomi, in a treatment plan submitted on February 8, 2017, and denied on March 1, 2017?

e. Is the applicant entitled to a medical benefit in the amount of $1,641.60 for chiropractic services recommended by Dr. Sal Viscomi, in a treatment plan submitted on February 13, 2017, and denied on March 1, 2017?

f. Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

4The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week for the period from August 10, 2015 to August 23, 2017.

5The applicant is not entitled to any of the medical benefits in dispute.

6The applicant is not entitled to any interest on overdue payments of benefits.

BACKGROUND

Accident

7The applicant was in a car accident on August 3, 2015. He attended Mackenzie Richmond Hill Hospital and was diagnosed with whiplash-associated disorder and was prescribed Toradol for his pain.¹

8The applicant attended his family doctor, Dr. Eisenberg, two days after the accident. The doctor diagnosed the applicant with myofascial strain of the neck and cervical spine and prescribed Naproxen for his pain. Dr. Eisenberg recommended that the applicant receive chiropractic treatment.²

9The applicant has seen Dr. Viscomi, a chiropractor, for eight weekly appointments. The weekly visits reduce the pain and the headaches for several days, to some degree.³

10The applicant continues to complain of headaches and neck pain, which he claims are aggravated by activities such as computer use. The applicant maintains that he cannot work at the computer for more than 30 minutes. The headaches apparently cause the applicant poor concentration and dizziness.

11The applicant played hockey, baseball and floor hockey two to three times a week before the accident. After the accident he continued to do the same. Nothing changed.⁴

12After the accident, the evidence at the hearing relating to the applicant‘s screen time was that the applicant spent much the same screen time on his phone or on the computer, as he did pre-accident.⁵

Employment

13The applicant and his former girlfriend operated a business known as H and R Wholesale Store. The applicant indicated that, at the time of the accident, he was working online in the business of buying and selling collectibles on Amazon and eBay. There was some physical labour involved for the applicant, involving the packing of the inventory, which requires approximately 30% of his time.

14There is an issue as to what the applicant was earning the year before the accident. He filed his 2015 tax return in 2017, two years past the date of the accident and after he was denied an income replacement benefit by the respondent. His girlfriend assisted the applicant in the business, and gave evidence on direct examination that they made no money in 2015, from the business.⁶

15The applicant was assessed for gross business income as $26,500.00 for the year 2015.⁷ There were no documents filed to support the assessment. His evidence was that his business dealt only in cash transactions and therefore he has no business records.⁸ The applicant’s evidence was that he received no monetary compensation for his services and simply valued his compensation as 50% of the total household expenses, which he estimated for tax purposes.⁹

16The applicant did not submit any documentation to verify the alleged living expenses or how he arrived at the 50% division of the total household expenses. At the time, he was living with his girlfriend, who had provided the inventory ($80,000.00) for the business. There was no evidence submitted as to what percentage of business duties were the applicant’s and what his girlfriend’s duties were.

17The applicant was assessed by Dr. Jose Guerra (Orthopedic) on an Insurer’s Examination (IE). In a report dated January 8, 2016, Dr. Guerra indicated that the applicant did not suffer a substantial inability to perform the essential tasks of his employment.¹⁰ His report was based on the subjective report of the applicant and on his physical examination.

18Alexander Roberts, who conducted a Job Site Analysis (JSA) and a Functional Abilities Evaluation (FAE), also found that the applicant did not meet the disability test based on the applicant’s reports.¹¹ The JSA analysis was based on the reports of the applicant. The applicant alleges that the information in the JSA is inaccurate. Mr. Roberts also found that the applicant’s overall strength meets the sedentary level.¹²

19There is no evidence that the applicant has made any attempts to go back to work. In his report, the applicant’s family physician did not recommend that he not return to work.

20Dr. Nesterenko (Physician) prepared a report on February 28, 2017, and an addendum report on May 11, 2018, indicating that further proposed medical treatments for chiropractic services would not provide any additional benefits as the services already provided achieved maximum medical benefit for the applicant. The respondent had, in the past, approved six treatment plans for chiropractic treatment during the years 2015 and 2016.

21The applicant has been receiving weekly chiropractic treatments for the last two years. His chiropractor, Dr. Sal Viscomi, indicates in his report that the treatments are sufficient to attenuate his headaches.¹³

ANALYSIS

Income Replacement Benefit

22In order to receive an IRB the Schedule requires that the applicant be employed at the time of the accident, and suffer a substantial inability to perform the essential tasks of that employment within 104 weeks after the accident, or suffer a complete inability to work after the first 104 weeks of disability.¹⁴

23The applicant maintains that he was self-employed in the collectibles business and filed a tax return for 2015 in 2017. The applicant gave no evidence as to why the 2015 tax return was filed in 2017. The applicant provided no business documentation, other than the actual 2015 tax assessment, to show what his business income and losses were for 2015, or how those losses were calculated between him and his girlfriend.

24The applicant simply valued his compensation as 50% of the total household expenses, and estimated for tax purpose what his income was. The applicant was asked for all of the business documentation relating to earnings and expenses by the respondent on August 31, 2015, by way of a section 33 request. The applicant did not comply with this request.

25I found that the former girlfriend of the applicant, was credible in her evidence on direct examination at the hearing. She did not want to give evidence and had been summoned by the respondent. In spite of this, she gave evidence that in 2015, she and the applicant made no income.

26I find that there is a contradiction in the evidence on the issue as to the applicant’s working, and earning income, for 2015. The onus is on the applicant to show, on the balance of probabilities, that he meets the Schedule’s requirements for income replacement benefits. I find that he has not met those requirements and has not shown that his business was making a profit.

27I also find that the applicant has not proven the Schedule’s requirements for suffering a substantial inability to perform the essential task of his employment.

28The applicant complains of pain in his neck and head that prevents him from spending longer than 30 minutes on the computer. He admitted that he still plays floor and ball hockey which requires concentration. His former girlfriend indicated that the applicant stills plays poker on his phone, and that the applicant spends much the same screen time on his phone, or on the computer post-accident, as he did pre-accident. I find that he is therefore capable of performing the essential tasks of his employment

29I accept the evidence of the former girlfriend and find that she was credible in her evidence. The former girlfriend is owed $80,000.00 by the applicant and would want him to be successful in being given an IRB so that he could start paying her back what he owes her. The applicant has also made no effort to go back to work or seek other employment.

MEDICAL TREATMENT PLANS

30The Schedule requires all medical benefits to be reasonable and necessary before an insurer is required to pay for them.¹⁵

31The applicant has asked that four further treatment plans for chiropractic services be paid for by the insurer.

32Dr. Nesterenko’s Report, as noted above, indicates that further proposed medical treatments for chiropractic services would not provide any additional benefits, as the services already provided achieved maximum medical benefit to the applicant.

33The applicant has not put forth any new evidence to show that there would be additional benefits to him if he were to continue with further chiropractic treatments.

34I also have difficulty reconciling the applicant still complaining about headaches and neck pain, when he can engage in very physical sports which are not affected by those headaches, and neck pain.

35I find that the applicant has not put forth sufficient evidence to show, on a balance of probabilities, that the requested treatment plans are reasonable and necessary.

ORDER

36The applicant’s appeal is dismissed.

Footnotes

1. 1Clinical notes and records of [The Hospital] - Applicant’s Book of Documents, Tab 3C
2. 2Dr. Eisen Records - Applicant Book of Documents, Tab 3a, at p.8
3. 3Dr. Viscomi Report - Applicant’s Supplementary Book of Documents, Tab 1A
4. 4Testimony of R.A.’s girlfriend, R. L. M.,
5. 5Ibid.
6. 6Testimony of R.A.’s girlfriend, R. L. M.,
7. 7Tax assessment for 2016 - Applicant’s Brief of Documents, Tab 2a
8. 8Davis Martindale Report, dated February 14, 2018, Tab 3B, Respondent’s Brief of Documents
9. 9ADS Report, dated February 27, 2018, Applicant’s Book of Documents, Tab 2B, at p4
10. 10Report of Dr. Guerra, dated January 8, 2016m Tab 5C - Respondents Book of Documents
11. 11Reports of Mr. Robert, January 8, 2016, Tab 5B, at p.81; Tab 5E, at p. 91 - Respondent’s Book of Documents
12. 12FAE dated January 8, 2016, Tab 5E, at p. 89 - Respondent’s Book of Documents.
13. 13Report of Sal Viscomi, March 22, 2018, Tab 1A - Applicant’s Supplementary Book of Documents, at page 2
14. 14Schedule, Section 4(5)
15. 15Schedule, Section 15