J. B. v. The Guarantee Company of North America, 2018 CanLII 77180

J. B. v. The Guarantee Company of North America

Date: 2018-07-17

Tribunal File Number: 17-003860/AABS

Case Name: 17-003860 v The Guarantee Company of North America

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:

J. B.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR: Khizer Anwar

For the Applicant: Maurice Benzaquen, counsel

For the Respondent: Kathleen O’ Hara and Devan Marr, counsel

HEARD: October 23 & 24, 2017

OVERVIEW

1J.B. (“the applicant”) was injured in an automobile accident on June 27, 2015 (“the accident”), and sought benefits from his auto insurer (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).¹

2The applicant requested payment of income replacement benefits (IRBs) and funding for medical and rehabilitation benefits, via treatment and assessment plans (“OCF-18”). The respondent denied funding for all the requests, as it held that the applicant was not entitled to the IRBs and his other requests for funding for medical and rehabilitation benefits were not reasonable and necessary.

3The applicant disagreed with the respondent’s denials and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES IN DISPUTE

4The issues in dispute identified by the parties to be decided are:

1. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period of April 14, 2017 to date and ongoing?

2. Is the applicant entitled to receive a medical benefit in the amount of $4,232.00 for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by [the physio and rehab centre], submitted March 9, 2017, denied by the respondent March 27, 2017?

3. Is the applicant entitled to receive a medical benefit in the amount of $548.17 for assistive devices pursuant to a Treatment and Assessment Plan (OCF-18) completed by Janice Kim, occupational therapist, submitted March 24, 2017, denied by the respondent May 30, 2017?

4. Is the applicant entitled to the cost of the examination for chronic pain report in the amount of $2,200.00 pursuant to a Treatment and Assessment Plan, submitted January 18, 2017, denied by the respondent February 13, 2017?

5. Is the respondent liable to pay an award under Ontario Regulation 664 of the Insurance Act because it unreasonably withheld or delayed payments to the applicant?

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

5For reasons to follow in my evidence and analysis section, I find that:

1. The applicant is entitled to the income replacement benefits;

2. The applicant is not entitled to the medical benefit in the amount of $4,232.00;

3. The applicant is not entitled to the medical benefit in the amount of $548.17;

4. The applicant is not entitled to the cost of examination in the amount of $2,200.00;

5. The respondent is not liable to pay an award under O. Reg 664/10; and

6. The applicant is entitled to interest on the payable benefits.

EVIDENCE & ANALYSIS

ISSUE # 1:

Is the applicant entitled to payment of income replacement benefits in the amount of $400.00 per week from April 14, 2017 to date and ongoing?

THE LAW

6Pursuant to section 5 of the Schedule, in order to prove entitlement to an income replacement benefit, the insured person must satisfy me that, due to an impairment sustained as a result of an accident, the insured person suffers a substantial inability to perform the essential tasks of the employment in which the applicant engaged in during the 52 weeks before the accident.²

THE APPLICANT’S POSITION & EVIDENCE

7The applicant submits that he is entitled to payment of income replacement benefits in the amount of $400.00 per week, from April 14, 2017 to date and ongoing.

The Applicant’s testimony

8According to the applicant, he continues to suffer from substantial inability to perform the essential tasks of his pre-accident employment. After the accident, the respondent made payments to the applicant for income replacement benefits in the amount of $400 per week until April 14, 2017. Since then, the applicant has not received additional payments in relation to IRBs, and due to pain, has been unable to return to his pre-accident employment.

9The applicant testified that his work expertise is specialized labour, such as spray foam installer and house framing installer. At the time of the accident, he reported that he was employed as a drywall applicator at Merlin Interior Systems, and had been acting in that role for two years on a full-time basis. He described a typical week entailing 8 hour working days (7am to 3pm) from Monday to Friday, earning $24 per hour.

10He described the essential tasks of his employment as loading, unloading, carrying, moving (from pile to cart), lifting and installing approximately 30-40 steel frames and sheets of drywall every day from morning to evening. According to the applicant, each steel frame and/or sheet of drywall was approximately 8 to 12 feet long and 4 feet wide, weighing in excess of 50-60 pounds, up to 150 pounds. 100 pounds on average, or in excess.

Medical Evidence

11The applicant relies on the clinical notes and records (CNRs), reports and in-person testimonies of the following medical practitioners to support his claim for entitlement to IRBs:

1. Dr. R. Doran, chronic pain specialist

2. Dr. E. Manoharan, chiropractor

Dr. Doran

12Dr. Doran, who identified himself as a chronic pain specialist, confirmed his status as the applicant’s treating physician during his testimony. As such, as a result of his general expertise, he provided opinion evidence in relation to the applicant’s treatment, diagnoses, prognosis and future treatment recommendations.

13Dr. Doran conducted an assessment of the applicant on April 21, 2017 and completed a report on the same day. At the time of this assessment, the applicant presented with complaints of right neck and shoulder pain, back pain and difficulty sleeping.

14Based on the results and findings of various assessment tools, which comprised questionnaires and physical examination, Dr. Doran diagnosed the applicant with the following:

1. Whiplash Associated Disorder Level II (WAD II) with persistent pain;

2. Myofascial pain syndrome involving his neck and shoulder on the right side with the presence of tight hands and trigger points;

3. Probable cervical facet arthropathy on the right with positive facet loading in typical pain distribution;

4. Cervical strain/sprain;

5. Lumbar strain/sprain;

6. Possible lumbar facet osteoarthropathy with positive facet loading; and

7. Subarachnoid bursitis involving his right shoulder with evidence on ultrasound

15Further to his diagnoses, Dr. Doran made recommendations focused on providing pain relief to the applicant along with improvement in function. Dr. Doran’s recommendations included continuation of physiotherapy and massage therapy, trigger point injections in his neck and shoulder and diagnostic cervical and lumbar medial branch blocks.

16Dr. Doran confirmed during his testimony that he had administered trigger point injections to the applicant, which ranged up to 60 injections per visit. The applicant’s last visit to obtain trigger point injections was March 17, 2017.

17More pertinently, Dr. Doran opined that it would be worthwhile for the applicant to consider retraining as he may never be able to return to his work as a drywaller, as it requires repetitive lifting of over 20kg, which exacerbates his neck, shoulder and back pain.

18Dr. Doran also confirmed during his testimony that at the time of the assessment and writing his report, he did not have access to any other medical records, including the family doctor’s clinical notes and records (CNRs), rehab clinic’s CNRs and insurer’s expert reports. Upon inquiry, Dr. Doran stated that while having access to such records is typically helpful, these records would likely not have influenced his diagnoses in this matter, as his findings are based on his assessment and physical examination.

Dr. Manoharan

19The respondent raised an issue of being prejudiced by the applicant’s failure to provide Dr. Manoharan’s clinical notes and records (CNRs), a treating chiropractor, despite having ample time to obtain them. As a result of this failure, the respondent made submissions for excluding her as a witness. The applicant replied that it made best efforts to obtain Dr. Manoharan’s CNRs but unfortunately, was unable to do so.

20I advised the parties that I will not exclude Dr. Manoharan as a witness. The respondent will have the opportunity to cross-examine Dr. Manoharan and the applicant’s failure to provide her CNRs will go to the weight of the evidence during my deliberation.

21Dr. Manoharan confirmed during her testimony that she is the applicant’s treating chiropractor since October 2016. According to her, the applicant was receiving treatment twice a week until the respondent stopped paying for his visits. The treatment modalities included active rehab (stretching and strengthening), passive pain management, massage, chiropractic treatment and heat treatment. In addition, the applicant participated in cardiovascular exercises as well as some low back exercises.

22During cross-examination, Dr. Manoharan also confirmed that she did not have the benefit of reviewing any additional medical records while completing the disability certificate (OCF-3) dated December 21, 2016. Moreover, she stated that she did not have a job description from the employer and relied on the applicant to provide that information.

THE RESPONDENT’S POSITION & EVIDENCE

23The respondent argues that the applicant does not meet the test of entitlement to IRBs. According to the respondent, the applicant has failed to produce credible objective evidence regarding both the essential tasks of his pre-accident employment and substantial inability to perform them. Furthermore, the respondent states that the applicant, while pleasant, was contradictory and inaccurate in his testimony, and therefore, unreliable.

24The respondent further contends that the conclusions of applicant’s treatment providers are unreliable, as in the absence of medical documents and employments records, the treatment providers had no objective evidence to base their conclusions, and relied heavily on his self-reporting for key information. In the end, none of the treatment providers found any objective impairment preventing the applicant from performing the essential tasks of his employment, and that pain in and of itself does not meet the test of entitlement for IRBs.

Medical Evidence

25The respondent did not call upon any of its assessors as witnesses, but relied on the medical reports of the following assessors to deny IRBs and medical benefits to the applicant:

1. Dr. Hosseini, physiatrist

2. Dr. Tyndel, neurologist

3. Timothy Hartog, kinesiologist

Dr. Hosseini

26Dr. Hosseini conducted multiple s. 44 assessments of the applicant. Based on his review of the applicant’s medical documents and information, physical examinations and clinical interviews of the applicant, Dr. Hosseini diagnosed the applicant with: 1) WAD I; 2) cervical spine sprain/strain; 3) thoracolumbar spine sprain/strain; 4) right shoulder ligament/joint sprain/strain; and 5) post-traumatic headaches. However, Dr. Hosseini maintained that the applicant did not suffer from any musculoskeletal impairment that prevented him from substantially engaging in the essential tasks of his employment.

27Dr. Hosseini did, however, state in his report of January 12, 2017 that the applicant continued to suffer from residual pain and hence, had not achieved maximal medical recovery. He recommended treatment in the form of over the counter or prescription analgesics, muscle relaxants or trigger point injections.

Dr. Tyndel

28Based on his assessment, Dr. Tyndel found that the applicant did not suffer from any physical impairment as a result of the accident that would prevent him from substantially engaging in the essential tasks of his employment. Dr. Tyndel’s only finding was that of episodic post-traumatic headaches, which in his opinion were expected to resolve by two years post-accident.

Timothy Hartog

29The respondent also commissioned a report from Timothy Hartog, a kinesiologist, dated February 24, 2017, as part of a multi-disciplinary examination. Based on his assessment, Mr. Hartog concluded that from a strictly functional perspective, the applicant did not match the strength requirements of his employment as a framer and drywaller. Mr. Hartog employed the job descriptions found in the National Occupational Classification Career Handbook and the Dictionary of Occupational Titles in reaching his conclusions.

FINDING

30For reasons to follow, the applicant has convinced me that as a result of the accident, he suffers from substantial inability to perform the essential tasks of his employment. Therefore, on a balance of probabilities, I find that the applicant is entitled to income replacement benefits in the amount of $400.00 per week from April 10, 2017 to date and ongoing.

31In my opinion, this matters turns primarily on the credibility of the applicant, and his testimony with respect to his accident-related injuries and his substantial inability to perform the essential tasks of his employment as a result of those injuries. Much like all the assessors, I found the applicant’s testimony credible and straight forward. While I take note of the discrepancies and inconsistencies found in the medical records and testimonies of the witnesses, duly highlighted by the respondent, I do not find that these inconsistencies materially discredit the applicant. Hence, I assign little to no weight to these inconsistencies.

32For example, I find that the applicant provided sufficient and credible information regarding the essential tasks of his employment as a drywaller and steel framer, noted in paragraph 11 of my analysis. As a result, I do not find the absence of information from the employer with respect to the essential tasks of his employment to be problematic. I also find the variance in reporting the weight lifted by the applicant at work in the form of drywall sheets and steel frames to be negligible. I am satisfied with the applicant’ testimony that on average, the drywall sheets weighed one hundred pounds approximately - corroborated by medical records where the applicant reported the weight to range from anywhere in excess of 50-60 pounds and up to 150 pounds.

33The respondent relies on the findings and conclusions of its assessors to contend that the applicant’s claim for IRBs must fail as no assessor on either side identified any impairment preventing him from completing the essential tasks of his employment.

34According to the respondent, the applicant’s treating physicians identified the applicant being in pain but failed to identify any resulting impairment preventing him from completing the essential tasks of his employment. The respondent argues that pain in and of itself does not qualify as impairment. Therefore, the applicant’s claim for IRBs must fail.

35I reject the respondent’s argument. Taking into account the labour intensive nature and specific tasks of the applicant’s employment, I accept the applicant’s submission that pain is impairing and debilitating for the applicant and prevents him from engaging in the essential tasks of his employment (namely loading, unloading, carrying, moving, lifting and installing sheets of drywall and steel frames).

36In conjunction with the applicant’s testimony, Mr. Hartog’s report provides corroborating evident to the applicant’s narrative and Dr. Doran’s findings. I take note of the treatment provided by Dr. Doran to the applicant and accept Dr. Doran’s diagnoses of myofascial pain syndrome and mild bursitis, causing pain and functional limitations in the applicant. It lends credence to the applicant’s account, and on a balance of probabilities, provide sufficient supporting medical evidence.

37In light of the foregoing, I find that the applicant is entitled to income replacement benefits in the amount of $400.00 per week, from April 14, 2017 to date and ongoing.

ISSUE # 2:

The treatment and assessment plans (OCF-18s)

38There are three treatment plans before me that are in dispute – two pertaining to the medical benefits and one to the cost of a chronic pain assessment The applicant failed to submit any of the treatment plans as evidence during the hearing or as part of the hearing record. For reasons to follow, I find that due to this failure of the applicant, I am unable to determine the reasonableness and necessity of the disputed treatment plans. As a result, I have no option but to find that they are neither reasonable nor necessary.

39The applicant submits that the denial of disputed treatment plans was the basis for the hearing and he led evidence at the hearing as it is done in any civil trial pertaining to their reasonableness and necessity. This, according to the applicant, is sufficient to deliberate their reasonableness and necessity. It does not matter then whether specific evidence was introduced to comment on the treatment plans, or whether the treatment plans themselves made part of the record.

40I disagree with the applicant. The treatment plans are documents that contain specific and relevant information, which were submitted by the applicant and reviewed by the respondent prior to denying the treatment plan. I do not have the benefit of reviewing the same information and ascertain holistically whether the denial was appropriate.

41While the applicant did introduce evidence with respect to his accident-related injuries, it does not allow me to adjudicate the treatment plans in lieu of those injuries. For example, I am unable to determine the goals and purpose of the treatment plans, how progress would be monitored where treatment relates to physiotherapy and chiropractic treatment, and most importantly, how the proposed treatments differ from the treatments already provided to the applicant.

42In my opinion, these are some of the important factors that should be addressed by the applicant, or information relating to them should be provided by the applicant, in order for me to deliberate the reasonableness and necessity of the treatment plans. For the most part, such information is found in the treatment plans. In the absence of this information then, I am unable to determine the reasonableness and necessity of the treatment plans. Hence, I find that the applicant has not met his onus and the disputed treatment plans are not reasonable and necessary.

43I find it prudent to comment that the applicant had ample opportunity to provide me with the said treatment plans but chose not to. Despite his oversight to include them as evidence in the joint document brief, the applicant could have introduced them as evidence at any point during the hearing. In the event he overlooked that as well, he could have included them as part of his closing submissions made by the parties in writing.

44The respondent was unequivocal in its closing submissions that in the absence of the treatment plans, the claims should be dismissed. The applicant had the chance to then include the treatment plans in its reply closing submissions. Instead, the applicant insisted that he had led sufficient evidence during the hearing to help me ascertain the reasonableness and necessity of the said treatment plans. Unfortunately, such is not the case.

45In light of the foregoing, I find that the applicant has not met his onus and is neither entitled to the medical benefits nor to the cost of the examination.

ISSUE # 3:

Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

46The applicant seeks an award under s. 10 of Reg 664, on the basis that the respondent unreasonably withheld or delayed payments to the applicant, and urges me to “punish” the respondent for acting in bad faith.

47I find that the respondent is not liable to pay a special award under Regulation 664 as I am not convinced that it withheld benefits sought by the applicant, unreasonably or in bad faith.

48The respondent’s denials had their basis in medical evidence proffered by the assessors it commissioned. Much like the applicant, who is entitled to rely on the opinions and findings of its treating physicians, the respondent is also entitled to rely on the findings of its medical experts. Both parties supported their respective positions with different forms of evidence and nowhere did I find any evidence of the respondent acting unreasonably or in bad faith.

ISSUE # 4:

Is the applicant entitled to Interest on overdue payments?

49Since I find that the IRBs are payable, the applicant is entitled to interest. Interest will be payable on the applicable amount of benefits owed to the applicant to the date of this decision in accordance with the Schedule.

COSTS

50The applicant also seeks costs of this hearing, citing bad faith conduct in following ways: 1) intentionally misleading the applicant about Dr. Hosseini’s attendance as a witness, and confirming payment of $5,000.00 to him for his attendance; 2) not ensuring that the integrity of Dr. Hosseini’s notes was maintained and failing to produce them; and 3) ignoring the findings of Timothy Hartog.

51I find that the applicant is not entitled to the costs of the hearing under Rule 19.2 of the Licence Appeals Tribunal Rules of Practice and Procedure (LAT Rules). I do not find the respondent’s action to not call upon Dr. Hosseini as a witness as intentionally misleading. There is no evidence before me that would prove as such. I accept the respondent’s submission that it made a last minute decision not to call upon Dr. Hosseini as a witness, as it suited its litigation strategy better. Either way, Dr. Hosseini’s absence did not prejudice the applicant as I have awarded the IRBs to the applicant and my denial of the treatment plans is not premised on Dr. Hosseini’s report.

52Therefore, no costs are awarded in favour of or against either party in lieu of this hearing.

CONCLUSION

53In light of foregoing, I find that:

1. The applicant is entitled to income replacement benefits in the amount of $400.00 per week.

2. The applicant is not entitled to the medical benefit in the amount of $4,232

3. The applicant is not entitled to the medical benefit in the amount of $548.17

4. The applicant is not entitled to the cost of examination for a chronic pain report.

5. The respondent is not liable to pay an award under the Ontario Regulation 664 of the Insurance Act.

6. The applicant is entitled to interest on payable benefits as per the Schedule.

ORDER

54The applicant’s appeal is granted in part.

Released: July 17, 2018

__________________________

Khizer Anwar

Adjudicator

Footnotes

1. 1O.Reg 34/10
2. 2Ibid