Tribunal File Number: 17-000889/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J.N.
Applicant
and
Travelers Insurance
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
Counsel for the Applicant: Moira Gracey
Counsel for the Respondent: Erin Morgan
HEARD IN PERSON: May 16, 2017
Overview
1The applicant was injured in a motor vehicle accident on July 21, 2014. He was a pedestrian crossing the street when he was hit on the right side of his body by a vehicle making a right hand turn. He described immediate pain in his right shoulder, hip and right leg. He was taken to [a hospital] where he was examined, sent for x-rays and given medication for his symptoms.
2Shortly after this, the applicant started to complain of back pain. He had no history of back pain prior to the accident. He began physiotherapy at the Sports Medicine Specialists and his condition began to improve. His family doctor, Dr. Alegado, deemed him capable of returning to work on modified duties as of October 1, 2014. On November 10, 2014, the applicant’s income replacement benefit was no longer being paid.
3On August 18, 2015, the applicant was performing deadlifts with a personal trainer in an attempt to strengthen his accident-related back injury. During his third set of deadlifts, he felt a sharp pain in his back and had to put the weight down. Later that day, the applicant attended the emergency room at [a hospital]. The evidence reveals that he sustained a disc herniation.
4On September 17, 2015, the applicant requested that his income replacement benefit be reinstated as he claimed that the disc herniation resulted in him suffering from a substantial inability to perform the essential tasks of his employment. He also sought payment for a vocational assessment which he deems reasonable and necessary.
5The respondent denied the applicant’s request to reinstate the income replacement benefit and payment of the vocational assessment, claiming that the disc herniation was not caused by the accident.
6The applicant and Mr.H., personal trainer and co-owner of [C.F. gym], testified at the in-person portion of the hearing.
Issues
7The following are the issues to be decided:
I. Is the applicant entitled to an income replacement benefit from August 18, 2015 to present and ongoing?
II. Is the applicant entitled to a payment for the cost of examinations in the amount of $2,200.00 for a vocational assessment recommended by Alfonso
Marino in a treatment plan dated March 9, 2017 and denied by the respondent on March 29, 2017?
8The parties agreed at the onset of the hearing that the quantum of the income replacement benefit was not in issue and as a result, I will only address the issue of entitlement to the income replacement benefit. I was also advised by the parties that all the other medical benefits in dispute have been resolved.
Result
9I find that:
I. The applicant is entitled to receive an income replacement for the time period from August 18, 2015 to July 21, 2016.
II. The applicant is entitled to receive an income replacement benefit for the time period from July 22, 2016 to the date of the hearing and ongoing;
III. The applicant is entitled to a payment for the cost of examinations in the amount of $2,200.00 for a vocational assessment, recommended by Alfonso Marino in a treatment plan dated March 9, 2017.
Income Replacement Benefit
10The entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 5(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform his/her job. Section 6(2) provides that the benefit is only payable after 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
First 104 Weeks
11The time period in dispute with respect to the first 104 weeks is from August 18, 2015, to July 21, 2016. The applicant submits that the first 104 week time period should be extended beyond July 21, 2016 in order to account for the time that the applicant returned to work and was not in need of the income replacement benefit. I disagree with this submission. Section 5 of the Schedule clearly outlines that the first 104 week time period ends two years after the date of the accident.
12My analysis with respect to the applicant’s entitlement to the income replacement benefit during the first 104 week time period is divided into three separate steps:
I. Was the applicant employed at the time of the accident?
II. Did the accident cause the applicant’s impairment; and
III. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?
Was the applicant employed at the time of the accident?
13It is uncontested that the applicant was working two jobs at the time of the motor vehicle accident. He worked as a casual Patient Care Assistant (equivalent to a Personal Support Worker) at [the hospital II] in the intensive care unit and as a personal support worker for a private client at his home.
Causation
14The applicant is entitled to the income replacement benefit only if the accident caused him to sustain an impairment that renders him unable to perform the essential tasks of his employment, and the inability to work manifests within 104 weeks of the accident.
15Both parties submit that I should apply the “but for” test when determining the issue of causation. I agree. State farm Mutual Automobile Insurance Co. and Sabadash (FSCO Appeal P16-00029, September 18, 2017) confirmed that the default test for determining causation in accident benefit cases is the “but for” test. Only in rare and exceptional circumstances, where it is impossible to provide the cause of the applicant’s injuries using the “but for” test, can an applicant prove causation by indicating that the respondent’s conduct “materially contributed” to the risk of the injury. This is not one of those cases.
16Under the “but for” test, the applicant bears the onus of establishing, on a balance of probabilities, that his disc herniation would not have occurred but for the accident.
17The first time the applicant saw his family doctor following the motor vehicle accident was on July 23, 2014. Dr. Alegado’s clinical notes and records from that day indicate that the applicant came in for a consultation due to right shoulder pain and difficulty walking due to pain in the right hip. Similarly, the August 21, 2014 disability certificate (OCF-3) prepared by Dr. Alegado diagnosis the applicant with right shoulder and right hip pain. Despite there being no specific mention of lower back pain, Dr. Alegado’s General Practitioner Assessment Report dated
September 21, 2015 explained that the applicant’s pain was “initially focused on his right shoulder and right hip (which is inclusive of his right lower back).” Dr. Alegado’s report is consistent with the applicant’s testimony as he described experiencing back pain shortly after the motor vehicle accident.
18The applicant attended physiotherapy for his accident-related injuries during August and September of 2014 at the Sports Medicine Specialists. The initial physiotherapy intake form, dated August 8, 2014, documents the applicant’s complaints of lower back pain. On August 20, 2014, the applicant provided a statement to the respondent for the purposes of adjusting his claim and at that time he indicated that he was experiencing back pain. The applicant also testified that he continued to experience back pain when he initially returned to work in September of 2014 but that the pain was manageable with the pain medication he was taking.
19On January 5, 2015, the applicant went to see his family doctor as his back pain persisted. The applicant testified that his pain medication was increased and that it was around this time that Dr. Alegado advised him to do exercise in order to help strengthen his back. Dr. Alegado confirmed this in his General Practitioner’s Assessment Report wherein he stated that the applicant’s “fitness training with a personal trainer at the gym up to August 2015 was recommended by me as a part of his rehabilitation from his accident-related injuries.”
20On January 26, 2015, the applicant was assessed by Dr. Liu, chiropractor, at the request of the respondent. Dr. Liu’s report, dated February 5, 2015, notes that the applicant continued to report experiencing pain in his lower back. The report also noted that the applicant reported a 90% overall improvement of his physical condition.
21The applicant continued to experience back pain in the following months. He followed up regularly with his family doctor and started to attend physiotherapy again on April 10, 2015. The clinical notes and records of Dr. Alegado and the Sports Medicine Specialists confirm these complaints. The April 10, 2015, clinical notes and records from the Sports Medicine Specialist noted “increased lower back pain. Work related duties. Education re. Proper lifting technique.”
22On June 2, 2015, the applicant, following the advice of Dr. Alegado, sought out a personal trainer in order to assist him in strengthening his back. In doing so, he attended [C.F. gym] for an assessment with Mr. H. The assessment included a questionnaire and a movement screen physical assessment, which included doing deadlifts. Mr. H. testified that a deadlift is a compound movement utilizing muscles in the back. The purpose of doing this exercise is to strengthen the back. He further explained that doing deadlifts can cause back pain and repetitive exercise can sometimes cause injury. The assessment notes indicate that the applicant advised Mr. H. of a prior back injury.
23On June 12, 2015, the applicant attended physiotherapy. He reported that his lower back hurt after doing deadlifts at his assessment. The applicant testified that his physiotherapist told him that he might feel discomfort while doing the deadlifts because he was strengthening his back. He further testified that his physiotherapist was supportive of what he was doing and that he was not told to stop performing the deadlifts. I have no reason to doubt the applicant’s testimony in this regard.
24On June 15, 2015, the applicant purchased additional personal training sessions with Mr.H.. His training sessions included multiple sets of deadlifts. The applicant believes he told Mr. H. about the back pain he experienced after doing deadlifts at the initial assessment. Mr. H. testified that the applicant did not report experiencing back pain from the deadlifts at the initial assessment. He further explained that had he known that the deadlifts were causing pain, he might have altered the type of exercises that the applicant was doing.
25The applicant’s lower back pain persisted, as noted in the clinical notes and records of the Sports Medicine Specialists on June 24, July 14 and August 12 of 2015. The applicant also saw Dr. Alegado on July 7, 2015. Dr. Alegado’s clinical notes and records from that day indicate that the applicant advised him of his ongoing back pain and that he had been seeing a personal trainer who was helping him for dynamic functional treatment. Under “Plan”, Dr. Alegado’s notes: Patient to continue physiotherapy and dynamic functional treatment. The applicant was uncertain as to whether he told Dr. Alegado about the pain he experienced after doing the deadlifts. There is also no indication that Dr. Alegado told the applicant to stop his personal training sessions at this time.
26On August 18, 2015, the applicant attended one of his personal training sessions. He was doing deadlifts with 95 pounds, which was a weight he had previously done. During his third set of deadlifts, he felt a sharp pain in his back and had to put the weight down. The personal trainer had him lie down and stretch. That did not alleviate the pain. Later that day, the applicant attended the emergency room at [a hospital]. The evidence reveals that he sustained a disc herniation.
27The applicant submits that the causal connection between the motor vehicle accident and the disc herniation is clear. The applicant had no history of back pain prior to the motor vehicle accident. The car accident resulted in an injury to his lower back. He began physiotherapy but the pain persisted. Because the pain persisted, he was advised to do exercise in order to help strengthen his back. He did so and in the process, sustained a disc herniation. If it were not for the car accident and the subsequent ongoing back pain, he would not have been doing the back strengthening exercises and as a result, would not have sustained the disc herniation.
28In contrast, the respondent makes two arguments. First, the respondent argues that the repetition of the deadlifts is what caused the disc herniation and as a result, is a separate and unrelated injury to the July 21, 2014 motor vehicle accident. In support of this position, the respondent directs me to the following:
I. August 7, 2014, clinical notes and records from the Sports Medicine Specialists wherein the applicant reported a “40% improvement”;
II. Dr. Liu’s report, dated February 5, 2015, wherein the applicant reported a 90% overall improvement of his physical condition;
III. The April 10, 2015, clinical notes and records from the Sports Medicine Specialist wherein the note reads “increased lower back pain. Work related duties. Education re. proper lifting technique.”; and
IV. The fact that the applicant returned to work on full duties and started a second job.
29In doing so, the respondent is suggesting that the applicant’s accident-related physical injuries, including his lower back, had resolved prior to the applicant engaging in back strengthening exercises. The disc herniation then, was a separate and unrelated injury to that sustained in the subject motor vehicle accident.
30Second, the respondent argues that the applicant acted unreasonably when he continued to perform deadlifts after he reported experiencing back pain from the deadlifts. This behaviour increased the risk of injury and therefore broke the chain of causation.
31Based on the evidence before me, I am satisfied that the applicant’s accident- related back pain persisted up to the point when he sustained the disc herniation on August 18, 2015. Not only did the applicant testify to this in a straightforward and credible manner but there is also a consistent record of complaints in this regard starting in August 2014. Dr. Alegado also confirmed that he recommended the applicant’s fitness training with a personal trainer up to August 2015 as part of his rehabilitation from his accident-related injuries. I have no reason to doubt this. The respondent’s own assessor, Dr. Bentley, stated in his physiatry paper review report dated January 19, 2016, that the type of exercise that caused the applicant’s back injury on August 18, 2015 would be recommended as treatment for resolving his accident-related injuries. I am, therefore, not convinced by the respondent’s first suggestion that the applicant’s accident-related physical injuries resolved prior to his engagement in the back strengthening exercises.
32I am also not convinced by the respondent’s second suggestion that the applicant acted unreasonably when he continued to perform deadlifts after he reported experiencing back pain from the deadlifts. The applicant first experienced back pain from the deadlifts after his initial assessment on June 2, 2015. Ten days later, on June 12, 2015, the applicant advised his physiotherapist of the pain the deadlifts caused. His physiotherapist told him that he might feel discomfort while doing the deadlifts, was supportive of what he was doing and did not tell him to stop performing the deadlifts. Three days after this meeting, the applicant purchased the additional personal training sessions. I do not find that this amounts to unreasonable behaviour which would break the chain of causation. Instead, I find that the applicant acted reasonably and took the necessary steps to protect him against further risk of injury as he disclosed the back pain he experienced from the initial deadlifts with one of his treating health practitioners. The uncertainty with respect to whether the applicant reported this pain to Mr. H. or Dr. Alegado does not change my conclusion. The applicant’s actions were guided by his physiotherapist, who was an integral part of his rehabilitation process. Seeking verification from Mr. H. or Dr. Alegado, while prudent, was not necessary.
33Given the discussion above, I am persuaded, on a balance of probabilities, that the causal connection between the car accident and the disc herniation has been made on the “but for” standard. If it were not for the car accident and the subsequent ongoing back pain, the applicant would not have been doing the back strengthening exercises and as a result, would not have sustained the disc herniation.
Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?
34Two determinations must be made in this regard. Firstly, what are the essential tasks of the applicant’s employment? Secondly, is the applicant substantially unable to perform the essential tasks of his employment?
What are the essential tasks of the applicant’s employment?
35The applicant’s work at [the hospital II] was described as being equivalent to a personal support worker. His work included assisting patients with mobility by transferring them from their bed to the washroom, to another bed, to a chair, or to a new unit. The applicant would also push a cart with medical supplies, meals, monitors, or defibrillators.
36The applicant’s work as a personal support worker for a private client at his home included cleaning the house, doing the laundry, helping with the groceries and making meals. The applicant was also responsible for assisting the client with taking a shower, going to the washroom and pushing the client in his wheelchair.
Is the applicant substantially unable to perform the essential task of his employment?
37The applicant asserts that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment due to the disc herniation he sustained on August 18, 2015. In support of this position, the applicant relies on the following:
I. The disability certificate of Dr. Alegado dated October 22, 2015, indicating that the applicant is substantially unable to perform the essential tasks of his employment in part due to his persistent and severe low back pain;
II. Dr. Alegado’s fifteen Attending Practitioners Statements and Functional Abilities Forms from August 18, 2015 to October 12, 2016. Dr. Alegado found that the applicant was physically unable to return to work from August 18, 2015 until the end of December 2015. The reason given was severe pain without medication and unable to walk properly, unable to lift nor bend, twist, pull or push. Dr. Alegado’s January 27, 2016 note found that the applicant was capable of returning to work with restrictions. The restrictions included sitting up to 30 minutes, lifting up to 5kg, lifting from the waist to the shoulder up to 5kg. The applicant attempted to return to work at this time but was refused because he was taking morphine for the pain. The applicant stopped taking morphine by the end of June 2016 and was able to return to work on modified duties in August of 2016. Dr. Alegado’s restrictions gradually decreased up until October 12, 2016. After this, the applicant moved into the permanent accommodations process with his employer;
III. The MRI dated March 6, 2016. The MRI indicated minor chronic degenerative changes in the L4-5 and L5/S1 discs. At L4-5, there is a small shallow central disc protrusion which approaches but does not come into contact with the nerve root on either side. There is also a small shallow central disc protrusion at L5/S1 which does contact the right S1 nerve root in the right lateral recess but does not displace or compress the root. The remainder of the examination was normal;
IV. Report of Dr. Chan, orthopaedic surgeon, dated October 3, 2016. Dr. Chan concluded that the applicant’s lower back symptoms have limited his ability to return to all of the aspects of his pre-accident employment duties. He further stated that activities that require bending, twisting, lifting, carrying, pushing, pulling involving his lower back have all been hampered; and
V. Report of Dr. Bodnar, psychologist, dated July 13, 2016. Dr. Bodnar diagnosed the applicant with Major Depression and Adjustment Disorder with anxiety as a result of the subject motor vehicle accident.
38The respondent refers to the following:
I. Report of Dr. Bentley, physiatrist, dated November 13, 2015. Dr. Bentley diagnosed the applicant with a lumbar strain with no impairment in range of motion and bilateral sacroiliac joint sprain with no impairment in range of movement. He further opined that the applicant does not suffer a substantial inability to perform the essential task of his pre-accident employment as a result of the subject motor vehicle accident;
II. The clinical notes and records of Dr. Alegado for January and May 2016 wherein the applicant “denies complaints”; and
III. OCF-18 dated February 3, 2016 wherein Mr. Branny, physiotherapist, noted 50% improvement in range of motion and 75% improvement in core muscle endurance.
39I am persuaded by the applicant’s evidence in this regard. Dr. Alegado has been the applicant’s family doctor since December 11, 2012. He saw the applicant regularly in relation to his accident- related injuries and played an integral part in the rehabilitation process. Dr. Alegado completed fifteen Attending Practitioners Statements and Functional Abilities Forms from August 18, 2015 to October 12, 2016, wherein he examined the applicant on an almost monthly basis in order to determine whether the applicant was capable of returning to work. Given this, Dr. Alegado was in an ideal position to understand and assess the nature of the tasks involved in the applicant’s employment and how the completion of these task would be impacted by the nature and severity of the applicant’s injuries. Furthermore, Dr. Alegado reduced the applicant’s workplace restrictions at a reasonable pace, given the nature and severity of the applicant’s injuries. As a result, I find Dr. Alegado’s evidence in this regard to be logical, well thought out and particularly persuasive.
40Additionally, I found the applicant’s testimony compelling. He described the difficulties he had with respect to repetitive bending, twisting, walking and sitting following the August 18, 2015 incident. The March 6, 2016 MRI supports the applicant’s testimony, as it illustrates that the applicant sustained a disc herniation in two places, with one coming into contact with the nerve root. I find the applicant’s description of his impairments and limitations to be consistent with Dr. Alegado’s findings.
41The respondent’s evidence and submission on this issue is primarily rooted around the issue of causation. Dr. Bentley’s conclusions are based on the assertion that the applicant’s disc herniation is not causally connected to the accident. I place very little weight on Dr. Bentley’s report since I have already concluded that the disc herniation is causally connected to the accident.
42Given the above, I am satisfied on a balance of probabilities that the applicant suffered from a substantial inability to perform the essential tasks of his employment from November 10, 2014 to July 21, 2016.
43The respondent submits that if I find that the applicant is entitled to a reinstatement of the income replacement benefit, then no benefits should be payable until November 4, 2015, which is when the applicant submitted the new disability certificate.
44On September 17, 2015, the applicant requested that his income replacement benefit be reinstated as of August 18, 2015, due to an exacerbation of his back pain. On October 2, 2015, the respondent requested a new Disability Certificate in order to determine the applicant’s continued entitlement to the benefit. On October 27, 2015, the respondent advised the applicant that it had not yet received the requested Disability Certificate and, in accordance with section 37(2) (a) of the Schedule, his entitlement to the income replacement benefit was suspended as of August 26, 2016. The respondent further stated that the benefit may be payable during the period of non-compliance if a reasonable reason for the delay is provided. On November 2, 2016, the applicant advised the respondent that the delay in providing the requested Disability Certificate was due to the fact that Dr. Alegado had been away on vacation. The applicant provided the respondent with the Disability Certificate on November 4, 2016.
45I find that the applicant’s actions were reasonable and that entitlement to the income replacement benefit begins August 18, 2015. The applicant requested the disability certificate from Dr. Alegado on October 7, 2015, a mere five days after the respondent made its request. On October 7, 2015, the applicant also provided the respondent with additional clinical notes and records as well as Dr. Alegado’s General Practitioner Assessment Report dated September 21, 2015. The delay in providing the requested disability certificate was due to unforeseen circumstances out of the control of the applicant and should not negate his obvious intention to comply with the respondent’s request.
46Given the discussion above, I am persuaded, on a balance of probabilities, that the applicant is entitled to receive an income replacement benefit for the time period from August 18, 2015 to July 21, 2016.
Post 104 Weeks
47In order for the applicant to be eligible for an income replacement benefit after the first 104 weeks from the date of the accident, he must show, on a balance of probabilities, that he is completely unable to engage in any employment for which he is reasonably suited by education, training or experience. This is commonly referred to as the more stringent “complete inability test” or the “post 104 test”.
48The applicant completed his primary and secondary education in the Philippines. In 2007, he graduated from the University of Cebu with a Bachelor of Science in Nursing. He was employed as a nursing instructor at the university for one semester and thereafter as a trainer, teaching healthcare students CPR, basic life support and nursing skills. He arrived in Canada in 2012 and his credentials were assessed as being equivalent to a Registered Practical nurse.
49From 2013 to 2016, the applicant was working as a casual Patient Care Assistant (equivalent to a Personal Support Worker) at [the hospital II] in the intensive care unit. He also worked as a personal support worker for a private client at his home. The applicant also completed the George Brown College “Pathway for Nurses” program (a program that prepares students for university level nursing training) from 2013 to 2015.
50At the time of the hearing, the applicant had almost completed the requirements for the Ryerson University Nursing degree wherein he specialized in providing tuberculosis education and testing. In doing so, he completed two required co-op placements hosted by the City of Toronto public health department and consisted of four hour shifts, two to three days a week, with some administrative duties being performed from home to accommodate his back pain.
51The applicant relies primarily on Mr. Bachmann’s Vocational Evaluation Assessment report dated April 6, 2017 in support of its position that he meets the “post 104” test. In his report, Mr. Bachmann identified 670 occupations as being compatible for the applicant, pre-disability. He then restricts the list to include only “light duty jobs” due to the applicant’s inability to engage in repetitive bending, twisting, lifting, carrying, pushing and pulling. “Light duty jobs” would also ensure that the applicant would not be required to lift more than 10 kg. The list was then reduced in order to reflect the applicant’s positional tolerances and inability to drive, leaving 166 residual occupations. Almost all of these 166 occupations were deemed not suitable or unachievable, as they were deemed to be:
I. Markedly inconsistent with the applicant’s education, training or experience;
II. Substantially dissimilar in nature and status; and
III. Outside the applicant’s expressed and manifests vocational interests.
52The remaining occupations that seemingly meet the applicant’s restrictions were then assessed. None of these occupations were deemed as reasonably suited for the applicant as they would require substantial retraining or additional certification. Mr. Bachmann goes on to indicate that there are some sedentary areas of nursing that the applicant will be able to do once he becomes a registered nurse.
53The respondent relies on the following in support of its position that the applicant does not meet the “post 104” test:
I. Dr. Bentley’s physiatry assessment paper review report dated May 5, 2017, wherein he concludes that the applicant does not suffer from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
II. The applicant’s ability to attend school on a full time basis in September 2015 and achieve good grades.
III. The applicant’s ability to complete two three month co-op placements in furtherance of his nursing degree.
54The respondent also criticizes Mr. Bachmann’s report and suggests that the conclusion drawn is illogical. The respondent did not, however, provide the Tribunal with its own vocational assessment or evidence of employment for which the applicant might reasonably be suited by education, training or experience.
55Furthermore, Dr. Bentley’s position is premised on the assertion that the applicant’s disc herniation is not causally connected to the accident. Again, I place very little weight on Dr. Bentley’s report since I have already concluded that the disc herniation is causally connected to the accident.
56I also place little weight on the applicant’s ability to complete two three month placements in furtherance of his nursing degree as evidence that he does not meet the “post 104” test. Although the placements provided the applicant with some clinical experience, I do not find that they reflect an ability on the part of the applicant to engage in any employment for which he is suited by education, training or experience. I would have needed a more in-depth appreciation of the applicant’s duties and functional capabilities while at the placements in order to reach such a conclusion.
57I note that the applicant’s training and experience is in the health care industry. Since the accident, he has made unsuccessful attempts to return to that industry. No other field of employment was advanced as suitable for the applicant.
58Mr. Bachmann’s Vocational Evaluation Assessment provided a thorough assessment of the applicant’s vocational history and functional limitations. He then provides an in-depth analysis supporting his conclusion that the applicant is unable to engage in any employment for which he is reasonably suited by education, training or experience. I am persuaded by Mr. Bachmann’s assessment and conclusions.
59I am satisfied on all the evidence before me that the applicant, in his present condition, is completely unable to engage in any employment for which he is suited by education, training or experience.
OCF-18 dated March 9, 2017 in the amount of $2,200.00 for a vocational assessment
60Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary. The applicant bears the onus of establishing on a balance of probabilities that the treatment plan in dispute is reasonable and necessary.
61The applicant argues that the treatment plan is reasonable and necessary as its purpose is to assess the applicant’s vocational potential within the context of his functional limitations and associated loss of vocational potential and to formulate a working plan for his career. The treatment plan notes the goals as being pain reduction and to identify vocational goals and required supports.
62On March 29, 2017, the respondent denied this treatment plan. The denial outlined that the treatment plan was not reasonable and necessary on the basis that the August 18, 2015 gym injury was not causally connected to the subject motor vehicle accident.
63The applicant has persuaded me that the treatment plan is reasonable and necessary. I have already found that the August 18, 2015 gym injury is causally connected to the subject motor vehicle and have outlined the physical impairments and limitations that arose due to this incident. The vocational assessment will undoubtedly help understand how these physical impairments and limitations will impact upon the applicant’s ability to work.
Conclusion
64For the reasons outlined above, I find that:
I. The applicant is entitled to receive an income replacement for the time period from August 18, 2015 to July 21, 2015;
II. The applicant is entitled to receive an income replacement benefit for the time period from July 22, 2015 to the date of the hearing and ongoing;
III. The applicant is entitled to a payment for the cost of examinations in the amount of $2,200.00 for a vocational assessment, recommended by Alfonso Marino in a treatment plan dated March 9, 2017.
Released: February 9, 2018
Paul Gosio Adjudicator