Tribunal File Number: 16-003306/AABS
Case Name: 16-003306 v Coachman Insurance Company
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:
[The Applicant]
Applicant
and
Coachman Insurance Company
Respondent
DECISION
ADJUDICATOR: Paul Gosio
APPEARANCES:
Counsel for the Applicant: Michael Bennett
Counsel for the Respondent: Jason Hickman
HEARD: In-Person: August 8, 2017
Overview
1The applicant was involved in a motor vehicle accident on October 18, 2015. He sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”) in order to address both his physical and psychological impairments. The applicant received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries. The applicant then submitted additional treatment plans which the respondent denied, taking the position that the applicant’s injuries are predominantly minor in nature and as a result, no more medical and rehabilitation benefits were payable.
2In addition to the medical and rehabilitation benefits sought, the applicant applied for an income replacement and attendant care benefit. The respondent denied entitlement to the income replacement benefit based on the strength of various s.44 reports that concluded that the applicant did not suffer from a substantial inability to perform the essential task of his pre-accident employment. Entitlement to the attendant care benefit was also denied by the respondent based on its conclusion that the applicant fell within the confines of the Minor Injury Guideline (“MIG”) and on the strength of various s.44 reports that concluded that the applicant was not in need of an aide or attendant to assist with personal care tasks.
Issues
3The applicant submitted an Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act, RSO 1990 c I.8 dated October 11, 2016. The applicant seeks a determination from the Licence Appeal Tribunal (the “Tribunal”) on the following issues:
I. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
II. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 25, 2015 to present and ongoing?
III. Is the applicant entitled to an attendant care benefit in the amount of $2,894.99 per month from October 18, 2015 to present and ongoing?
IV. Is the applicant entitled to a medical benefit outlined in a partially approved chiropractic treatment plan dated October 19, 2015 in the amount of $1,346.92?
V. Is the applicant entitled to the cost of an attendant care needs assessment dated December 4, 2015 in the amount of $1,680.00?
VI. Is the applicant entitled to the cost of a chiropractic assessment dated December 16, 2015 in the amount of $3,099.08?
VII. Is the applicant entitled to the cost of an occupational therapy in-home assessment dated January 22, 2016 in the amount of $1,599.00?
VIII. Is the applicant entitled to a medical benefit outlined in a partially approved OCF-6 dated February 6, 2016 for medication in the amount of $298.32?
IX. Is the applicant entitled to a medical benefit outlined in an OCF-6 dated September 30, 2016 for medication in the amount of $381.50?
X. Is the applicant entitled to interest on any overdue payments?
XI. Is the applicant entitled to costs of the proceeding?
XII. Is the applicant entitled to an Award?
Result
4I find that:
I. The applicant did not sustain predominately minor injuries as defined under the Schedule.
II. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from October 25, 2015 to October 18, 2017.
III. The applicant is entitled to an attendant care benefit in the amount of $2,894.99 per month from July 7, 2016 to October 18, 2017.
IV. The applicant is entitled to a medical benefit outlined in a partially approved chiropractic treatment plan dated October 19, 2015 in the amount of $250.00 which represents the unapproved portion of the treatment plan.
V. The applicant is entitled to the cost of an occupational therapy in-home assessment dated January 22, 2016 in the amount of $1,599.00.
VI. The applicant is entitled to interest in accordance with the Schedule on all overdue payments of benefits owing.
VII. The applicant is entitled to an Award under Section 10 of Regulation 664 in the form of a lump sum of $15,464.85 representing 40% of the total amount of attendant care benefits owing to the applicant.
Discussion
5The applicant bears the onus of establishing, on a balance of probabilities, that he falls outside the confines of the MIG and that he is entitled to the medical, income replacement and attendant care benefits in dispute.
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
6Section 3 of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule caps recovery for predominately minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the MIG.
7The applicant argues that he suffered from a fractured sternum, a head injury/concussion and chronic major depressive disorder with both psychological factors and a general medical condition as a result of the motor vehicle accident. He submits that each of these injuries, whether examined independently or in combination of one another, fall outside the confines of the MIG.
Fractured Sternum
8The applicant submits that he suffered from a fractured sternum as a result of the motor vehicle accident. In support of his position, the applicant relies on the results of a CT scan he received from the Xiangya Hospital in the Hunan Province of China.
9The applicant was taken by ambulance to the Lakeridge Health Hospital following the motor vehicle accident. He complained of pain in his chest, head and neck. He was diagnosed as having a minor head injury and went through the normal head injury protocol. X-rays were taken of the applicant’s thoracic and cervical spine and sternum. He was diagnosed with sternal pain and no fractures were noted. He was discharged that same day and followed up with his family doctor in the following weeks.
10The applicant continued to experience pain in his chest and described it as being “almost unbearable.” He asked his family doctor for referrals to a specialist in order to address the pain but his requests were dismissed. He migrated from family doctor to family doctor in order to get the appropriate referral without any success. The prescribed painkillers and recommended physiotherapy provided no relief. The applicant then travelled to China in November 2015, in order to get a second opinion with respect to his injuries as he felt like his pain complaints were being dismissed and not given the proper consideration by his treating doctors in Canada.
11In November 2015, the applicant attended the Xiangya Hospital in the Hunan Province of China. He obtained a CT scan of his sternum which revealed an oblique fracture of the lower sternum. The applicant then returned from China with a copy of the CT scan. No diagnostic report was provided by the Xiangya Hospital, however the images were provided to Milliken Finch Diagnostic Imaging for review. Dr. Mah, a qualified radiologist, reviewed the images and noted an “overriding sternal fracture.”
12Dr. Martin, who conducted a section 44 orthopaedic surgery assessment on behalf of the respondent, reviewed the CT scan from the Xiangya Hospital along with report from Dr. Mah. After reviewing this material, Dr. Martin concluded in his report dated February 5, 2016, that the applicant did suffer from a fractured sternum as a result of the motor vehicle accident. Dr. Martin also noted that a referral to a treating thoracic surgeon may be appropriate.
13Dr. Martin was subsequently asked to review and comment on the x-rays taken from the Lakeridge Health Hospital as well as the CT scan taken from the Xiangya Hospital. Dr. Martin did this on two separate occasions and addendum reports were prepared.
14In his Addendum Report dated April 21, 2016, Dr. Martin noted that the x-rays taken of the applicant’s sternum at the Lake Ridge Health Hospital were, in his opinion, to be of poor technical quality. He also noted that he could not see definite evidence of a fracture on these x-rays but acknowledged that sternal and chest x-rays are not ones commonly viewed by orthopaedic surgeons. Dr. Martin’s opinions and conclusions, as stated in his report dated February 5, 2016, remained unchanged.
15In his Addendum Report dated July 18, 2017, Dr. Martin once again concluded that his opinions and conclusions, as stated in his report dated February 5, 2016, remained unchanged. The applicant submits that Dr. Martin’s findings strengthen the applicant’s position that he suffered from a fractured sternum as a result of the motor vehicle accident.
16The respondent denies that the applicant suffered from a fractured sternum as a result of the motor vehicle accident as it relies on the x-rays taken at the Lakeridge Health Hospital on the night of the accident wherein no fractures were noted. As a result, the respondent takes issue with the results of the CT scan from China and questions how and when this sternum fracture occurred.
17The respondent also directs me to the evidence provided by the applicant’s family doctor, Dr. Shew. The applicant saw Dr. Shew on October 23, 2015. On that date, Dr. Shew noted a bruise on the applicant’s sternum, however, he did not report it as being tender, nor did he report a haematoma, nor a bump or step in the bone. There is also no indicia of a fractured sternum noted in the Disability Certificate (OCF-3) prepared by Dr. Shew on October 23, 2015.
18The respondent also relies on the testimony of Dr. Martin wherein he made the following clarifications to his reports. First, Dr. Martin explained that although he is not designated as a radiologist, part of what he does as an orthopaedic surgeon involves the interpretation of musculoskeletal x-rays. As such, he explained sternal and chest x-rays are commonly viewed by orthopaedic surgeons but not commonly reported on by orthopaedic surgeons. That, he said, is usually left to a qualified radiologist.
19Second, Dr. Martin reiterated that it is his opinion that the applicant did suffer from a fractured sternum but called into question as to when and how the fracture occurred. He explained that because the CT scan was taken approximately one month following the accident, there should have been evidence of healing yet the CT scan “shows no evidence of healing bone or a reaction that you would see after an injury.”
20I am satisfied, on a balance of probabilities that the applicant suffered from a fractured sternum as a result of the motor vehicle accident. First, I have placed little weight on the x-rays taken from the Lakeridge Health Hospital as I rely on Dr. Martin’s opinion that these x-rays were of poor technical quality. No such issue was raised with respect to the CT scan obtained from the Xiangya Hospital.
21Second, the respondents own assessor, Dr. Martin, concluded that the applicant suffered from a fractured sternum as a result of the motor vehicle accident. Dr. Martin came to this conclusion after his initial assessment and maintained this position after two subsequent paper reviews. I am not persuaded by Dr. Martin’s concern with respect to when and how the fracture occurred. This concern was not raised in his initial report nor his addendums. Dr. Martin raised this concern, for the first time, at the hearing and for that reason, I give it little weight.
22Third, I give little weight to Dr. Shew’s evidence as he did not have the benefit of the CT scan from China. Finally, I am persuaded by the applicant’s testimony with respect to the circumstances that led him to travel to the Xiangya Hospital.
23A fractured sternum does not fall within the definition of a minor injury and as a result, I find that the applicant falls outside the confines of the MIG. Given that I have found that the applicant falls outside the confines of the MIG due to a fractured sternum, I do not need to determine whether his alleged head injury/concussion or psychological condition does the same.
Disputed Treatment Plans
24Since I have found that the applicant falls outside the confines of the MIG, I will now consider whether each individual treatment plan is reasonable and necessary in accordance with sections 14 and 15 of the Schedule. The applicant bears the onus of establishing on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.
Is the applicant entitled to a medical benefit outlined in a partially approved chiropractic treatment plan dated October 19, 2015 in the amount of $1,346.92?
25This treatment plan proposes funding for chiropractic services, active therapy and transportation in the amount of $3,577.52. The respondent partially approved this treatment plan in the amount of $2,230.60 on the strength of Dr. Martin’s February 5, 2016 report. On January 25, 2016, the respondent agreed to cover the full amount incurred up to the Minor Injury Guideline limits. Accordingly, only $250.00 of this treatment plan remains unpaid.
26The respondent, relying on Dr. Martin’s opinion, submits that the unpaid portion of this treatment plan is not payable as it is associated with transportation costs. Dr. Martin opined that the transportation costs associated with this treatment plan were not reasonable and necessary for two reasons. First, Dr. Martin noted that the applicant had recently travelled to China on his own. Second, he noted that the applicant reported that he had a valid driver’s licence and that he continued to drive.
27I am not persuaded by the respondent’s submission. The applicant was suffering from a fractured sternum at the time this treatment plan was submitted. He was also dealing with pain in his head, neck and shoulders. The applicant traveled to China because his pain complaints were being ignored by his treating health practitioners. He explained that his trips to and from China were extremely painful for him because of his injuries. As such, I find that the unpaid portion of this treatment plan is reasonable and necessary.
Is the applicant entitled to the cost of a chiropractic assessment dated December 16, 2015 in the amount of $3,099.08?
28This treatment plan proposes funding for a reassessment, a reassessment report, chiropractic services (14 sessions), active therapy/acupuncture (14 sessions) and transportation (14 trips). The respondent denied this treatment plan based on findings contained in Dr. Martin’s section 44 Orthopaedic Assessment Report. Dr. Martin opined that this treatment plan was not reasonable and necessary as it was submitted prior to the completion of the approved treatment plan dated October 19, 2015. The applicant did not make any submissions with respect to this issue.
29I find that this treatment plan is not reasonable and necessary. I am not concerned by the fact that the applicant submitted this treatment plan prior to the completion of the previously approved treatment plan which has similar goals and methods for treating the applicant’s injuries. In some cases, that would be appropriate. In this case, however, I would have required a better understanding with respect to the applicant’s progress/response to the previously approved treatment given that a significant portion of that treatment plan had yet to be consumed.
Is the applicant entitled to a medical benefit outlined in a partially approved OCF-6 dated February 6, 2016 for medication in the amount of $298.32?
30The respondent partially approved this Expenses Claim Form. The respondent agreed to pay for the ambulance bill, the Mylan-Baclofen (a muscle relaxant) and the Lenoltec (for pain relief). The respondent refused to pay for the Docusate Sodium, which is a laxative, and the Cialis, which is used to treat erectile dysfunction, as it takes the position that these medications are used to treat medical conditions that are not related to any injuries that the applicant suffered as a result of the motor vehicle accident. The applicant did not make any submissions with respect to this issue and I am therefore persuaded by the respondent’s submission and find that the balance of the OCF-6 is not payable as it is not reasonable.
Is the applicant entitled to a medical benefit outlined in an OCF-6 dated September 30, 2016 for medication in the amount of $381.50?
31This Expenses Claim Form is for various prescription medications. The respondent denied these expenses taking the position that the medications listed are used to treat medical conditions that are not related to any injuries that the applicant suffered as a result of the motor vehicle accident. The applicant did not make any submissions with respect to this issue and I am therefore persuaded by the respondent’s submission and find that the OCF-6 is not payable as it is not reasonable.
Assessment of Attendant Care Needs
Is the applicant entitled to the cost of an occupational therapy in-home assessment dated January 22, 2016 in the amount of $1,599.00?
32This treatment plan proposes funding for the preparation of an occupational therapy in-home assessment and Form 1. Pursuant to section 25(1)4 of the Schedule, “an insurer shall pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if incurred by or on behalf of an insured person.”
33Pursuant to section 25(1)4 of the Schedule, the respondent would be liable to pay the fee charged under this treatment plan if:
I. The assessment was prepared by an occupational therapist or registered nurse;
II. The fee charged was reasonable; and
III. The fee was incurred.
34In this case, the assessment and Form 1 was prepared by Mr. Wong, an occupational therapist. The fee charged for preparing the assessment and Form 1 was $1,599.00. I find this to be reasonable as it is in accordance with section 25(5)(a) of the Schedule which states that an insurer shall not pay more than a total of $2,000.00 for conducting any one assessment. The fee was incurred as defined by section 3.7e of the Schedule. Since the requirements of section 25(1)4 of the Schedule have been met, I find that this treatment plan is payable.
Is the applicant entitled to the cost of an attendant care needs assessment dated December 4, 2015 in the amount of $1,680.00?
35This treatment plan proposes funding for the completion of an attendant care assessment. The treatment plan was prepared Dr. Owilaei, a chiropractor. I find that this treatment plan is not payable pursuant to section 25(1)4 of the Schedule as it does not satisfy the requirement that the assessment be prepared by an occupational therapist or registered nurse.
Income Replacement Benefit
36The entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 5(1)(i) of the Schedule 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) of the Schedule provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform his/her job. I did not consider the applicant’s entitlement to an income replacement benefit beyond the first 104 weeks as the parties’ evidence and submissions were limited to the first 104 week period.
First 104 weeks
37My 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. What are the applicant’s accident related impairments?
III. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment due to his accident related impairments?
Was the applicant employed at the time of the accident?
38The parties agree that the applicant was working for a realtor [ ] at the time of the accident. The essential tasks of his employment are at dispute and will be discussed later.
What are the applicant’s accident related impairments?
39The applicant submits that he suffers from both physical and psychological impairments as a result of the motor vehicle accident. He submits that his physical impairments include a fractured sternum, ongoing severe headaches arising from a post concussive syndrome and pain and loss of motion in his neck, back and upper left shoulder. I accept the applicant’s submission in this regard. First, I have already concluded that the applicant suffered from a fractured sternum as a result of the motor vehicle accident. Second, the evidence put forward by the respondents own assessors, confirm these impairments. Dr. Kim (neurologist), conclude that the applicant suffered from ongoing severe headaches arising from a post concussive syndrome. He attributed this to the motor vehicle accident. Dr. Martin confirmed that the applicant was dealing with pain and loss of motion in his neck, back and upper left shoulder. Third, the applicant’s testimony was compelling in this regard. He testified in a clear and direct manner and his pain complaints were consistent with the objective medical evidence before me.
Psychological Impairments
40The applicant was assessed by Dr. Lau, psychologist, on July 16, 2016. The assessment included a clinical interview and the administration of several psychological tests including the Beck Depression Inventory, the Beck Anxiety Inventory, the Million Clinical Multiaxial Inventory – III and the Rey 15 – Item Memory Test. Based on his assessment, Dr. Lau diagnosed the applicant with Chronic Major Depressive Disorder with Anxiety, Chronic Pain Disorder with Both Psychological Factors and a General Medical Condition, and Specific Phobia, Situational Type (Driving/Passenger Anxiety). The applicant submits that Dr. Lau’s diagnosis accurately reflects his accident related psychological impairments.
41On March 7, 2016, Dr. Wolf conducted a s.44 psychiatric assessment on behalf of the respondent. The assessment included a clinical interview and the administration of the Rey 15 – Item Memory Test. In his report dated March 18, 2016, Dr. Wolf noted the following:
I. Despite describing numerous severe emotional symptoms, the applicant has never been tried on psychotropic medication to help with his mood or anxiety;
II. The Disability Certificate prepared by Dr. Shew on October 23, 2015,does not mention any type of emotional difficulties;
III. The applicant’s mental status examination was not consistent with his reported emotional symptoms;
IV. There is evidence of amplification of his symptoms; and
V. He failed a malingering test.
42Dr. Wolf, relying on these five factors, opined that the applicant does not suffer from a psychological impairment as a result of the motor vehicle accident. The respondent relies on this opinion.
43At the hearing, Dr. Lau testified and commented on Dr. Wolf’s opinion. In doing so, he noted the following:
I. Even though the Disability Certificate prepared by Dr. Shew does not mention any type of emotional difficulties, his clinical notes and records from that same day note a number of psychiatric symptom and complaints of psychological problems.
II. The applicant’s failure to show emotion at the clinical interview is consistent with the applicant’s overall picture and does not suggest that he has no psychological problems. In order to support his position, Dr. Lau noted that his psychological testing found the applicant to be socially aloof and distant. He also pointed out that the section 44 report prepared by Dr. Martin noted the applicants affect to be flat.
III. He could not find the “evidence” in Dr. Wolf’s report suggesting that the applicant was amplifying his symptoms. Dr. Lau further noted that Dr. Wolf did not administer any of the tests usually used to determine if a person is amplifying or magnifying their symptoms. Dr. Lau, on the other hand, did so when he administered the MCMI III test. The applicant obtained a valid profile and there was no indication of symptom magnification present.
IV. Dr. Wolf’s opinion that the applicant was a malingerer, was based on the results of one test, the Rey 15-Item Memory test. He noted that the results of one test in this regard, is not sufficient or comprehensive enough to come to such a conclusion. Dr. Lau suggested that it is more appropriate to use the Rey 15-Item Memory Test in conjunction with other tests in order to reach a more valid conclusion.
44Counsel for the respondent objected to Dr. Lau testifying in this way as Dr. Lau did not include any of this commentary in his Psychological Assessment Report. I allowed Dr. Lau to comment on Dr. Wolf’s report for the following reasons. First, I found that it would be sufficiently useful when determining whether or not the applicant sustained a psychological impairment as a result of the motor vehicle accident. Second, Dr. Lau’s comments would be subject to cross examination by the respondent’s capable and experienced counsel. Third, Dr. Wolf was scheduled to testify following the completion of the applicant’s case, thereby giving Dr. Wolf an opportunity to respond to Dr. Lau’s comments. I also note that I invited the parties to make further submissions on this point in their written closing submissions. The parties did not take the opportunity to do so. Given the above, I concluded that the probative value of Dr. Lau’s testimony in this regard, outweighed any potential prejudicial effect. Furthermore, it is important to note that I would have had the same concerns with respect to Dr. Wolf’s report even if Dr. Lau was not permitted to testify in this way. These concerns become clearly evident after a review of the evidence before the Tribunal.
45I prefer the evidence of Dr. Lau and find that his diagnosis accurately reflects the applicant’s accident related psychological impairments. I have come to this conclusion for the following reasons. First, I find Dr. Lau’s assessment and report to be more comprehensive than the assessment and report completed by Dr. Wolf. Second, I found Dr. Lau’s evidence to be more consistent with the totality of the evidence before me. Third, I have concerns with respect to Dr. Wolf’s analysis and findings for the reasons articulated above and as a result, I have given Dr. Wolf’s analysis and findings little weight.
Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment due to his accident related impairments?
46To answer this question, I must first determine the essential tasks of the applicant’s pre-accident employment. I can then determine whether the applicant is substantially unable to perform these tasks as a result of his accident related impairments. In this case, I have found that the applicant does suffer a substantial inability to perform the essential tasks of his pre-accident employment due to his accident related impairments
What are the essential tasks of the applicant’s pre-accident employment?
47The applicant was working for a real estate agent [ ] at the time of the accident. He would refer clients who were looking to buy or rent property to the real estate agent. He had no fixed hours. He was not required to go into an office or sit at a desk. He would interact with the clients either by phone or in person and would talk to them about buying or renting properties. I find that the applicant’s interaction with clients was a key component of his pre-accident employment.
Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment due to his accident related impairments?
48The applicant relies primarily on the evidence of Dr. Lau in support of his position that he suffers from a substantial inability to perform the essential tasks of his pre-accident employment. Dr. Lau noted that the applicant continued to experience a very high level of emotional and physical distress nine months after the accident. Dr. Lau opined that the applicant was substantially disabled from returning to his pre-accident employment. In fact, Dr. Lau concluded that the applicant was not able to return to any job because of the high level of emotional disturbance, post-concussive symptoms, loss of confidence, poor stress coping and chronic pain.
49The respondent submits that the medical evidence does not support a finding that the applicant suffered from a substantial inability to perform the essential tasks of his pre-accident employment. In support of its position, the respondent relies on the following:
I. Dr. Martin’s opinion that the applicant’s musculoskeletal impairments would not prevent him from returning to his sedentary pre-accident job.
II. Dr. Wolf’s opinion that the applicant did not suffer from a substantial inability to engage in the essential tasks of his pre-accident employment from a psychiatric perspective.
III. Dr. Kim’s opinion that the applicant did not suffer from any neurological impairment as a direct result of the motor vehicle accident that would cause a substantial inability to engage in the essential tasks of his pre-accident employment.
IV. The surveillance evidence which consists of an Investigations Report dated March 13, 2016, and video footage. The respondent suggests that this surveillance evidence shows the applicant: driving without any issue; socializing with friends and exhibiting normal mobility amongst other things. Ultimately, the respondent submits that based on the surveillance evidence, there was no evidence of any limitations that would impede the applicant’s ability to return to his sedentary and flexible pre-accident employment.
50I prefer the evidence put forward by the applicant and find that he suffered from a substantial inability to perform the essential tasks of his pre-accident employment due to his accident related impairments.
51As acknowledge by the respondent, the social aspect of the applicant’s pre-accident employment was a key component of his job. I find that the applicant’s psychological impairments result in him suffering from a substantial inability to perform this social aspect of his job. Dr. Lau’s evidence was compelling in this regard. I gave Dr. Wolf’s opinion little weight with respect to the applicant’s need for an income replacement benefit from a psychiatric perspective as I have concerns with his analysis and findings.
52Dr. Kim noted that the applicant sustained a concussion due to a closed head injury suffered in the motor vehicle accident. He opined that this injury is causing the applicant to suffer from posttraumatic headaches. I find that these posttraumatic headaches contribute to the applicant’s inability to perform the essential tasks of his pre-accident employment. As a result, I give little weight to Dr. Kim’s conclusion regarding the applicant’s need for an income replacement benefit.
53I also do not agree with the respondent’s interpretation of the surveillance evidence. The surveillance reveals very little with respect to the applicant’s ability to return to his pre-accident employment. I find that the evidence is not comprehensive enough to draw such a conclusion. Additionally, much of what was capture in the surveillance footage is consistent with the applicant’s self-reporting to his assessors. As a result, the surveillance evidence does not lead me to question the applicant’s evidence nor does it call into question the applicant’s entitlement to an income replacement benefit.
Quantum of the Income Replacement Benefit
54The applicant submits that he is entitled to an income replacement benefit in the amount of $400.00 per week. At the hearing, the applicant testified that he entered into a formal working relationship with his employer, [ ], approximately one month prior to the accident. He submits that during this time, he earned $875.00 per week for each of the last 4 weeks before the accident. This is confirmed in the Employers Confirmation of Income Form. The applicants submits that at “70% of gross”, he would be entitled to an income replacement benefit in the amount of $400.00 per week for the time period in dispute.
55The respondent submits that the applicant would be entitled to an income replacement benefit in the amount of $245.00 per week or $222.60 per week. In support of its position, the respondent directs me to the 2015 T4 rendered by [his employer] to the applicant in the amount of $3,500.00. The respondent submits that this $3,500.00 represents the total amount of money the applicant earned while at [his employment]. The respondent then directs me to the Application for Accident Benefits, which indicates that the applicant began working [there] on August 1, 2015 and the Employers Confirmation of Income Form which indicates that the applicant began working with [them] on August 7, 2015. The respondent then submits that the applicant’s gross salary was either $350.00 per week if he started work on August 7, 2015 ($3,500.00 divided by 10 weeks) or $318.00 per week if he started work on August 1, 2015 ($3,500 divided by just under 11 weeks). At “70% of gross”, the applicant’s weekly income replacement benefit would be either $245.00 per week or about $222.60 per week rather than the $400.00 claimed by the applicant.
56I find that the applicant is entitled to an income replacement benefit in the amount of $400.00 per week. The Employers Confirmation of Income Form clearly states that the applicant earned $875.00 per week for each of the last 4 weeks before the accident. I have no reason to doubt the contents of the Employers Confirmation of Income Form. Furthermore, the applicant testified at the hearing that he began reporting his income four weeks prior to the accident and therefore, the entire $3,500.00 reported on his income tax return represents the income he earned in the four weeks prior to the accident. I am persuaded by the applicant’s testimony in this regard and accept it as fact. $875.00 at “70% gross” amounts to $612.50 thereby entitling the applicant to $400.00 per week which is the maximum available under the Schedule.
Noncompliance with section 33 of the Schedule
57The respondent wrote to the applicant on November 6, 2015, requesting that he submit his last two paystubs so that quantum of the income replacement benefit could be calculated. The applicant did not provide the respondent with any paystubs and as a result the respondent is seeking a determination that the applicant failed to comply with section 33(1) of the Schedule. Section 33(6) of the Schedule states that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with section 33(1) of the Schedule. As a result, the respondent submits that the applicant is not entitled to the income replacement benefit due to his failure to comply with section 33 of the Schedule.
58I am not persuaded by the respondent’s submission in this regard. The applicant’s evidence at the hearing was that these pay stubs did not exist and as such, he could not comply with the request. I accept the applicant’s evidence as fact and find his explanation to be reasonable.
Attendant Care Benefit
59As per section 19 of the Schedule, the applicant would be entitled to attendant care benefits up to a maximum of $3,000.00 per month for the first 104 weeks after the accident if he can establish that the attendant care services are, as a result of the accident, reasonable and necessary. If the person who provided attendant care services is a family member, as opposed to a professional service provider, the benefit payable is limited to the economic loss incurred by the family member. This is regardless of the amount or level of care determined to be necessary by a health care provider and outlined in an Assessment of Attendant Care Needs (“Form 1”).
60The applicant submits that he is entitled to attendant care benefits in the amount of $2,894.99 per month and relies on the strength of Mr. Wong’s Occupational Therapy report dated March 10, 2016 and the corresponding Form 1 dated March 10, 2016. As per its submissions, the applicant is seeking payment of the attendant care benefit from December 1, 2015 to October 18, 2017 (which marks the end of the first 104 weeks after the accident).
61The respondent did not have the applicant assessed by an occupational therapist or registered nurse for the purposes of assessing his attendant care needs. The respondent takes the position that the applicant is not entitled to the attendant care benefit for the following reasons:
I. Pursuant to section 14(2) of the Schedule, the applicant is not entitled to attendant care benefits because he falls within the confines of the MIG;
II. The attendant care benefits claimed by the applicant are not reasonable and necessary; and
III. The attendant care benefits were not properly incurred as mandated by section 3(7)(e) of the Schedule.
62Section 14(2) of the Schedule does not apply in this case as I have already found that the applicant does not fall within the confines of the MIG.
Are the Claimed Attendant Care Benefits Reasonable and Necessary?
63Form 1’s outline three different levels of personal care that qualify for attendant care benefits. The levels are differentiated by the level of need required and the skill required to perform the care. Each level has a different hourly rate and the care activities are measured in minutes per day. Level 1 refers to routine personal care such as help with dressing, grooming and feeding. Level 2 refers to care for basic supervisory functions such as hygiene and self-sufficiency in emergency situations. Level 3 refers to complex health care and hygiene functions and assisting with prescribed exercise programs.
64The Form 1 prepared by Mr. Wong outlines the following attendant care services deemed reasonable and necessary for the applicant. With respect to level 1 care, Mr. Wong allocated 280 minutes per week for dressing and undressing; 125 minutes per week for grooming and 840 minutes per week for feeding. With respect to level 2 care, Mr. Wong allocated 315 minutes per week for hygiene and 1,680 minutes per week for basic supervisory care. With respect to level 3 care, Mr. Wong allocated 105 minutes per week for bathing. Mr. Wong deemed these care needs to be reasonable and necessary due to the applicant’s ongoing headaches with dizziness and the pain he is experiencing in his neck, lower back, shoulders, hips and knees.
65The respondent asserts that attendant care benefits are not reasonable and necessary for the following reasons:
I. Dr. Kim concluded that the applicant does not have any neurological impairment as a result of the motor vehicle accident that require the need for attendant care assistance;
II. Dr. Wolf did not believe that the applicant required attendant care assistance from a psychiatric perspective;
III. Dr. Martin noted inconsistencies between the applicant’s described abilities and his apparent abilities. He then opined that the musculoskeletal injuries sustained in the accident would not result in the need for an aide or attendant to assist with personal care;
IV. The applicant did not provide Mr. Wong with accurate information with respect to his self-care abilities.
66I find the amount of level 1, 2 and 3 care, as outlined by Mr. Wong, to be reasonable and necessary. Mr. Wong’s assessment was thorough and his testimony was compelling. His recommendations logically flow from the applicant’s overall limited functioning due to his ongoing headaches and the pain he is experiencing in his neck, lower back, shoulders, hips and knees. It is also important to reiterate that the respondent failed to submit its own Form 1 as it did not have the applicant assessed for the purposes of determining his attendant care needs. Although this is not necessary in every case, it would have been helpful in this case given the respondents concerns.
67I would further note the following with respect to the respondent’s concerns. First, Dr. Kim noted that the applicant sustained a concussion due to a closed head injury suffered in the motor vehicle accident. He opined that this injury is causing the applicant to suffer from posttraumatic headaches. As Mr. Wong opined, these posttraumatic headaches contribute to the applicant’s need for attendant care services. As a result, I give little weight to Dr. Kim’s conclusion regarding the applicant’s need for attendant care services.
68Second, Dr. Wolf did not believe that the applicant required attendant care assistance from a psychiatric perspective as he opined that the applicant did not suffer from a psychological impairment as a result of the motor vehicle accident. As previously mentioned, I disagree with Dr. Wolf’s findings and prefer the evidence put forward by Dr. Lau. As such, I give little weight to Dr. Wolf’s conclusion with respect to the applicant’s need for attendant care services.
69Third, I disagree with the respondent’s suggestion that Mr. Wong would have recommended significantly less attendant care services for the applicant had he been provided with accurate information with respect to the applicant’s attendant care needs. The respondent’s submission is premised, in part, on the surveillance evidence. Mr. Wong was shown portions of the surveillance video footage by the respondent and was asked to comment on what he saw. Mr. Wong noted that the applicant appeared to be “much more functional” but opined that it was probably during one of his “good days”. Mr. Wong also stated that what he saw was in line with his assessment and that the surveillance footage would not change his recommendations with respect to the applicant’s attendant care needs.
70I have also reviewed the Investigation Report and the video surveillance footage. This evidence does not lead me to question the applicant’s evidence nor does it call into question the recommendations made by Mr. Wong with respect to the applicant’s attendant care needs. Based on the above, I find that the applicant is entitled to attendant care services in the amount outlined in the Form 1 prepared by Mr. Wong subject to my findings below.
Attendant Care Services for the time period from December 1, 2015 to December 31, 2016
71The applicant submits that his wife performed attendant care services, as outlined in the Form 1, from December 1, 2015 to December 31, 2016. Since the applicant’s wife is a non-professional service provider, the benefit payable is limited to the economic loss incurred by her as per the Schedule.
72The applicant’s wife testified at the hearing. She stated that she would have started working at [a poultry factory] deboning chicken at the beginning of December 2015 had she not been responsible for taking care of her husband. The applicant’s wife ended up working [there] from December 26, 2016 to April 30, 2017. The applicant submits that his wife’s pay stubs and income tax documentation from that time establishes that she suffered an economic loss in excess of $2,894.99 for every month that she stayed home to take care of him. The applicant further relies on section 3(8) of the Schedule and submits that the Tribunal should deem the expense incurred as the respondent unreasonably withheld payment of the benefit. The applicant submits that this is evidenced by the fact that the respondent intentionally misrepresented the findings of its s.44 assessors in order to keep him within the confines of the MIG which automatically disentitled him to any attendant care benefits.
73The respondent submits the following in response. First, the fact that the applicant’s wife may have foregone employment while providing attendant care services does not automatically qualify as an economic loss. Second, the applicant was living alone for various periods of time spanning from January to April 2016. As a result, the respondent submits that the applicant’s wife could have only provided attendant care services in December 2015 and then from April 2016 to December 2016. Third, the respondent submits that the applicant has failed to establish that his wife suffered an economic loss for the months she provided the attendant care services. Forth, the respondent submits that the applicant’s wife’s Notice of Reassessment for 2015 establishes that her economic loss could be no more than $935.00 per month. Fifth, the respondent submits that even if it withheld payment of the attendant care benefit, there was nothing preventing the applicant’s wife from providing proof of economic loss in a timely fashion.
74I do not need to determine the applicant’s wife’s economic loss as I find that the respondent unreasonably withheld payment of this benefit as per section 3(8) of the Schedule. Section 3(8) of the Schedule imposes a standard of unreasonableness. I find that the respondent’s conduct did not meet this standard of reasonableness as it intentionally misrepresented the findings of its s.44 assessors in order to keep applicant within the confines of the MIG. The respondent’s decision automatically disentitled the applicant to any attendant care benefits. As such, the applicant has established, on a balance of probabilities, that the deemed incurred provision as laid out in section 3(8) of the Schedule applies in this case.
Retroactive Attendant Care Benefits
75The applicant is seeking attendant care benefits from December 1, 2015, which is the date in which the applicant’s wife began performing the attendant care services for him. The Form 1 prepared by Mr. Wong is dated February 10, 2016. Neither party made any submissions as to when the Form 1 was actually submitted to the respondent, however, the evidence before me suggests that the Form 1 was submitted to the respondent on July 7, 2016.
76The respondent submits that in accordance with section 42 of the Schedule, the applicant should only be entitled to attendant care benefits from the date the Form 1 was submitted. Although the respondent acknowledges that retroactive Form 1’s may be permitted in some cases, it disagrees with the applicant’s submission that it is warranted in this case.
77Both parties refer me to the Tribunal’s decision in T.K. and Unica Insurance Inc. wherein adjudicator Shapiro reasoned that a retroactive Form 1 would be appropriate where urgency and impracticability prevented compliance with the Schedule and holding otherwise would produce and “absurd” result. I accept adjudicator Shapiro’s reasoning and find that there is no urgency or impossibility or impracticability that would explain the delay in submitting the Form 1 in this case. As a result, retroactive attendant care benefits are not awarded. The benefit shall be paid from the date the Form 1 was submitted to the respondent, July 7, 2016.
Attendant Care Services for the time period from January 1, 2017 to August 18, 2017
78As of January 1, 2017, the applicant was receiving attendant care services from Ms. Yang, a certified personal support worker from Integrated Rehab Services Inc. I find that these services were provided in accordance with Mr. Wong’s Form 1. I rely on the sign in sheets, the corresponding OCF-6’s and the testimony of Ms. Yang and Ms. Chan, the owner of Integrated rehab Services Inc. Both Ms. Yang and Ms. Chan testified in a direct, clear and unambiguous manner and I am not persuaded by the respondent’s submission that they failed to provide sufficient proof that the attendant care services were actually provided.
79Based on the above, I find that the applicant is entitled to attendant care benefits in the amount of $2,894.99 for the time period from July 7, 2016 to August 18, 2017.
Costs
80The Licence Appeal Tribunal Rules of Practice and Procedure include a provision in Rule 19.1 for the parties to request costs if they believe the other party has acted unreasonably, frivolously, vexatiously or in bad faith in the course of the proceeding. Reference to the proceeding encompasses a time period that begins when the applicant’s submits its Application to the Tribunal and ends when the Tribunal issues its final decision. Rule 19.4 further sets out the requirements for that request, which must include the reason for the request and the particulars of the alleged conduct.
81The applicant has asked for costs in this proceeding. It has alleged that the respondent’s conduct has been in bad faith. It has set out the reasons for the request and the particulars of the respondent’s conduct. Most of the alleged bad faith conduct outlined in the applicant’s submissions occurred prior to the commencement of the proceeding and is therefore not applicable to a determination of costs according to the Tribunals rules. The remaining alleged bad faith conduct with respect to the proceeding can be summarized as follows:
I. The respondent demanded an in-person hearing as opposed to a written hearing knowing that the applicant could not afford an in-person hearing;
II. The respondent refused to reduce the cost of the in-person hearing by having Dr. Martin and Dr. Kim submit their evidence by way of their reports and insisted on having them testify in person;
III. Even after the respondent heard evidence that Dr. Wolf shredded his notes, it continued to rely on Dr. Wolf’s conclusion that the applicant was a malingerer. An insurer acting in the utmost good faith, would have immediately paid the benefits owing.
82I am not persuaded by the applicant’s submissions in this regard and find that no costs should be awarded. Adjudicator Truong considered the parties submissions with respect to the appropriate mode of hearing in this case during the case conference. She concluded that there were legitimate grounds to have an in-person hearing. Those grounds were not undermined by what took place at the hearing. Furthermore, the evidence before me fails to establish that the respondent’s desire to have an in-person hearing was motivated by the knowledge that the applicant could not afford an in-person hearing.
83I am also not persuaded by the applicant’s submission that the respondent acted in bad faith when it did not immediately pay the benefits owing upon learning that Dr. Wolf shredded the notes he made during the assessment. Dr. Wolf testified that he does not take complete notes during an assessment but instead writes down a word or two in order to jog his memory when he dictates his report. He explained that he engages in the process because he dictates his report immediately following the assessment. I accept Dr. Wolf’s evidence that this is what occurred in this case and do not agree with the applicant’s suggestion that Dr. Wolf shredded his notes in order to affect the outcome of this proceeding. As a result, I find Dr. Wolf’s report to be a true reflection of any notes made during his assessment and as such, I do not find that the respondent acted in bad faith when it continued to rely on Dr. Wolf’s conclusions.
Award
84The applicant claims an award under Section 10 of Regulation 664 (O. Reg. 43/16, s. 4), which reads as follows:
If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
85An award claim must be linked to a disputed benefit which is ordered payable. The applicant bears the onus of establishing, on a balance of probabilities that the respondent acted unreasonably in withholding or delaying the payment of a disputed benefit. I do not find that the respondent unreasonably withheld or delayed payment with respect to the income replacement benefit or the treatment plans that I found to be payable.
Did the respondent unreasonably withhold or delay payment of the attendant care benefit?
86I do find that the respondent acted unreasonably when it withheld payment of the attendant care benefit to a degree that would attract an award under section 10 of regulation 664. The respondent unreasonable conduct stems from the fact that it intentionally misrepresented the findings of its s.44 assessors in order to keep the applicant within the confines of the MIG. Letters from the respondent to the applicant dated March 24, 2016 and July 8, 2016 demonstrate this misrepresentation. Both letters state the following:
“It is the opinion of our assessors and determination of your insurer that your injuries are considered predominately under the Minor Injuries Guidelines not exceeding $3,500 for medicals/rehabilitations benefits; and you do not qualify to receive Income Replacement Benefits, nor Non-Earner benefits, Nor Attendant Care benefits.”
87The evidence before me clearly indicates that this was not the opinion of the respondent’s assessors and as such, I find this conduct to be unreasonable to a degree that would attract an award under section 10 of regulation 664. I am not persuaded by the respondent’s submission that the denial of the attendant care benefit was reasonable as it was based on the conclusions of Dr. Martin, Dr. Wolf and Dr. Kim each of whom concluded that the applicant did not satisfy the criteria for attendant care benefits. The respondent’s denial of attendant care benefits was directly linked to the finding that the applicant fell within the confines of the MIG.
Quantum of the Award
88The amount of the award must rationally relate to the circumstances of the case so as to further the goals of deterrence and should also be proportionate to the misconduct. The outstanding attendant care benefits owing is $38,662.12 (representing the 13 month, 11 day period in which I found the benefit to be payable). The maximum special award that can be awarded in this case amounts to $19,331.06 (50% of the $38,662.12 in attendant care benefits owing). A 50% award should be reserved for the most egregious conduct of the part of the insurer. This is not one of those cases. In this case I find that an award in the amount of $15,464.85 (representing a lump sum of 40% of the attendant care benefits), plus interest is appropriate. I have come to this conclusion taking the following into account:
I. The respondent’s actions were intentionally misleading.
II. The applicant is particularly vulnerable given that he came to Canada as a refugee in 2007 and as a result has very little economic and social roots in Canada.
III. Significant economic harm was imposed on the applicant by the respondent’s decision.
IV. The need to deter similar behavior in situations wherein there is notable power imbalance.
89Interest shall be determined by the parties in accordance with the Schedule.
Conclusion
90For the reasons outlined above, I find that:
I. The applicant did not sustain predominately minor injuries as defined under the Schedule.
II. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from October 25, 2015 to October 18, 2017.
III. The applicant is entitled to an attendant care benefit in the amount of $2,894.99 per month from July 7, 2016 to October 18, 2017.
IV. The applicant entitled to a medical benefit outlined in a partially approved chiropractic treatment plan dated October 19, 2015 in the amount of $250.00 which represents the unapproved portion of the treatment plan.
V. The applicant entitled to the cost of an occupational therapy in-home assessment dated January 22, 2016 in the amount of $1,599.00.
VI. The applicant is entitled to interest in accordance with the Schedule on all overdue payments of benefits owing.
VII. The applicant is entitled to an Award under Section 10 of Regulation 664 in the form of a lump sum of $15,464.8540 representing 40% of the total amount of attendant care benefits owing to the applicant.
Released: May 16, 2018
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Paul Gosio, Adjudicator