[C.G.] v. Travelers Insurance, 2019 CanLII 101478

Citation: [C.G.] vs. Travelers Insurance, 2019 ONLAT 18-001021/AABS

Date: September 17, 2019

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:

[C.G.]

Appellant

and

Travelers Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Matthew M. Létourneau

Appearances:

For the Appellant: Tina Radimisis, Counsel

For the Respondent: Christopher McCormack, Counsel

Heard: In Writing Hearing: October 11, 2018

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on October 13, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant claims Income Replacement, Medical Benefits and other expenses. He has not returned to work as a licensed self-employed taxi driver and does not believe he will be able to return to any job due to the accident. He has also been taking prescription medication to assist with medical impairments and submitted an in-home assessment and chiropractic treatment plan that were denied.

3The respondent views the applicant’s impairments as “minor” and that his claims are exaggerated or not credible and also points to pre-existing impairments as the true causes of any medical limitations. The respondent denies that, but for the subject accident, there are any new impairments relating to the claimed benefits. The respondent denies the benefits in stating that the impairments do not meet the legal tests in the Schedule on points of procedure and substance.

4I must determine whether income replacement benefits are payable up to 104 weeks post-accident due to a substantial inability to do the job of a taxi driver. For the period following the 104 weeks mark post-accident, I must determine if the applicant is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited. Finally, I must determine whether medical benefits and expenses are reasonable and necessary.

RESULT

5The result of my review and decision is that the applicant is entitled to income replacement benefits from the date of denial to 104 weeks post accident. He is not entitled to income replacement benefits beyond 104 weeks following the accident. Regarding medical benefits, the applicant is entitled to the treatment plans and expenses claimed that were not withdrawn. Interest is payable on any overdue benefits. Costs are not awarded in this matter.

ISSUES

6The issues in dispute were determined in Adjudicator Baker’s order of June 20, 2018 as follow:

i. Is the applicant entitled to income replacement benefits in the amount of $400.00 per week, from the date of denial, June 17, 2016 to October 13, 2017 (substantial inability) and for the period after 104 weeks, being October 14, 2017 to date and ongoing (complete inability);

ii. Is the applicant entitled to receive $1,582.00 compensation for an in-home assessment by Access Rehab, as submitted on February 17, 2016 and denied on March 8, 2016?

iii. Is the applicant entitled to receive $292.00 for prescription drugs, submitted by way of an OCF-6 on December 15, 2016 and denied on March 2, 2017?

iv. Is the applicant entitled to receive $300.72 for prescription drugs, submitted by OCF-6 on March 17, 2017 and denied on March 23, 2017?

v. Is the applicant entitled to receive a medical benefit for chiropractic services in the amount of $1,715.00 as recommended by Dr. Galotos in a treatment plan submitted on March 8, 2017 and denied on March 23, 2017?

vi. Is the applicant entitled to interest on the delayed receipt of benefits?

7In the written submissions of the parties, the respondent raised a preliminary issue as well as a request for costs.

8The preliminary issue raised by the respondent is a request to bar the applicant under s. 55 of the Schedule from applying to the Tribunal due to a failure to attend an IE examination scheduled pursuant to s. 44 of the Schedule. The respondent submits that this issue was raised at the case conference of May 31, 2018 and by letter on July 31, 2018. The applicant was able to respond to the preliminary issue in the applicant’s reply. Thus, this preliminary issue will be dealt with in this hearing.

9The issue of costs is also added to this hearing.

RELEVANT INFORMATION

10I reviewed the entire evidentiary records submitted by the parties with their written submissions. I will first set out factual information and findings that are relevant to the issues in dispute. I have attempted to organize the voluminous information by category and chronology to ensure accuracy. This will assist me in then following with an analysis of each issue and my reasons in coming to the result in this matter.

11The respondent submits that the applicant’s reports to physicians are inconsistent and that this reduces credibility. The respondent submits generally that any diagnoses based on the applicant’s reporting should be given little weight. While I find there to be some inconsistencies with the applicant’s reporting, it appears to be specific details that are lost, whereas the overall reporting remains largely consistent.

12I find that the general themes reported by the applicant are reliable. Where specific details are unclear, there is substantial information submitted along with this file that corroborates my findings. For example, regarding physical impairments, I look specifically to in-person assessments and objective CT or X-Ray scans for this information. For psychological information, I indicate where I make findings based on professional testing or objective information.

Pre-Existing Condition

13The applicant’s health prior to the subject accident suffered due to several incidents. The applicant reportedly had a knee surgery in 1991. Then, in 2013, he complained to Dr. Pang, his family doctor of low back pain with pain radiating to the legs. Dr. Pang’s, clinical notes confirm that he saw the applicant on May 11, 2013 and observed back pain, lumbar strain and radiating pain to legs and some trauma, aggravated by driving taxi. He was prescribed acetaminophen at this time.

14On October 27, 2014, the applicant was involved in a motor vehicle accident. He submits that he stopped working for one month on the advice of his physicians. After two weeks, however, he claims that he returned to work full-time as a taxi-driver and part-time as a property maintenance person on properties he owned. On December 20, 2014 and again on March 21, May 30 and July 25, 2015, Dr. Pang noted that the applicant returned to his duties as a taxi driver part-time due to neck and low back pain from this 2014 accident. There was some confusion as to whether he returned full-time or part-time, but I find it sufficient to accept that he did not completely stop driving after this 2014 accident and continued working to some degree. The materials before me did not indicate that a specific review of how many hours was completed, so there are only verbal reports from the applicant regarding how much he worked.

15A CT scan of October 17, 2014 was done due to complaints of spine pain and this is consistent with what the applicant reported to Dr. Pang at the time, i.e. pain in his neck, left shoulder, bilateral knees, and back. He was diagnosed with strain in the cervical spine, left shoulder, lumbar spine and knees.

16The respondent highlights 6 visits to Dr. Pang from October 29, 2014 to July 25, 2015 – as indicated in the clinical notes and records - regarding the pain from this 2014 accident. The applicant was prescribed Naproxen at most of these consultations, as well as physiotherapy.

17I find that the applicant had mostly resolved his physical complaints prior to the subject accident. He had stopped taking Naproxen several months before this accident and, as set out below, did not have any psychological complaints pre-accident.

Subject Accident - October 13, 2015

18The applicant was involved in an accident on October 13, 2015 when his Toyota Prius was rear-ended by a Toyota travelling at about 50 kilometers per hour. He reported that the collision caused a “great impact”. The Motor Vehicle Accident report states that the applicant was a belted driver of the vehicle when he was rear ended, and the air bags did not deploy.

19The applicant’s son drove him home, but he felt dizziness, pain and pressure in his chest. That same day, he went to [the hospital] and reported headaches. He received Tylenol for the pain and x-rays were ordered due to multiple reports of pain throughout his body. The x-ray of the cervical spine revealed “restriction of flexion and extension suggesting pain or muscle spams”.

20The applicant reported that the accident caused him to strike his face on the steering wheel and the headrest. He also hit his chest and knees forward on the vehicle and felt immediate and excruciating pain.

Level of Impairment

21The level of impairment was contested by both parties. The applicant submitted that there was a serious level of impairment which justifies entitlement for income replacement benefits up to and beyond 104 weeks post accident, and that all claimed benefits are reasonable and necessary due to these impairments. The respondent’s evidence was that any injuries were minor and that the reports from the applicant were exaggerated or not credible, which leads to their position of denying all claims for benefits.

22I find that the applicant suffered physical and psychological impairments, as discussed below, from the subject accident that would entitle him to receive pre-104-week income replacement benefits. I also find that these impairments, along with the supporting medical information, make all claimed treatment, medications and expenses reasonable and necessary.

23However, I find that the physical and psychological improvements noted in the file are such that it is impossible to conclude that there is a complete inability to perform any job for which the applicant is qualified due to experience, training or education.

Medication and Braces Reasonable and Necessary

24The applicant’s claim for prescription drugs is payable if the medication is necessary for an impairment caused by the motor vehicle accident, prescribed by a regulated health professional and is reasonable and necessary.

25On October 14, 2015, the applicant saw his family physician of 15 years, Dr. P. Pang. The clinical notes and records of this visit state that the applicant was assessed with cervical and lumbar strain, post-traumatic headaches and dizziness as a result of the collision. Dr. Pang recommended physiotherapy and Naproxen (250 mg). The respondent contests that any medication was prescribed at this time. I find that that the applicant had stopped his use of Naproxen from the 2014 accident on June 25, 2015. He was prescribed Naproxen by Dr. Pang to manage pain and on January 27, 2016, he was referred to a pain specialist to further assist with pain management. The respondent’s IE Neurologist and Physiatrist both accept that Naproxen was prescribed as a result of the subject accident. While Naproxen was not in dispute, other pain medications are disputed, and I find that the applicant’s impairment immediately post-accident required pain treatment through medication. The applicant is later prescribed Gabapentin and Vimovo, which are equally reasonable and necessary given these initial and ongoing impairments.

26The applicant withdrew a number of expenses, leaving only the following claims in dispute:

i. OCF-6 claimed expenses of December 5, 2018, including

a. $29.84 for Gabapentin;

b. $65.00 for two wrist braces; and

c. $23.56 for Gabapentin.

ii. OCF-6 claimed expenses of March 14, 2017, including

a. $33.46 for Gabapentin;

b. $33.46 for Gabapentin;

c. $90.42 for Vimovo; and

d. $143.38 for Vimovo.

27I find these claims to be reasonable and necessary and properly claimed under the Schedule for the following reasons.

28The expenses are reasonable because they assist with pain management. I find that the Gabapentin specifically helps with pain management – and not seizures – and is necessary given the pain arising from the accident. Naproxen and Tylenol was being prescribed consistently by Dr. Pang. Later, he was prescribed Celebrex for pain management. The s. 44 IE Assessors did not dispute that medication for pain was necessary even if Dr. Margaliot would have prescribed more prophylactic medication. Gabapentin is reasonable and necessary for the same reasons as other pain medication was prescribed. I find that this analysis applies equally to the claims for Vimovo by Dr. Gale. There are clear indications in the medical documents for the reasons why medication was prescribed, and it is squarely in line with pain management regarding the subject accident.

29The wrist braces are reasonable and necessary because they help to treat a specific injury arising out of the accident. The applicant harmed his wrists as he reportedly smashed into the steering wheel. He reported pain in his wrists to Dr. Roussev, neurologist, who found that the applicant showed signs of Carpal Tunnel Syndrome in his report of October 6, 2016. I accept the applicant’s evidence from Dr. Roussev that he hurt his wrists during the accident when he struck the steering wheel and that but for the accident, he would not have endured wrist pain to this degree.

Chiropractic Treatment of March 17, 2017 Reasonable and Necessary

30Within two weeks after the accident, the applicant began treatment at The Spine Institute where he began receiving treatment such as massages, heat, TENs and stretching. The applicant stated that he continues to attend chiropractic therapy twice a week. Given this early and ongoing treatment of chiropractic treatment, I find that the chiropractic treatment is reasonable. The disputed chiropractic treatment was denied due to the respondent’s position that this is a case of a minor injury. The applicant was later removed from the minor injury guidelines. I find that the applicant was diagnosed with chronic pain disorder and that the chiropractic treatment was treating the physical impairments of the applicant. Dr. Scher’s, psychologist, report of August 18, 2018 sets out in detail the multiple sources that I accept as a basis for chronic pain disorder in this case. The applicant was referred to a chronic pain clinic on January 27, 2016 to help treat the impairments and pain.

31I find as well that the disputed chiropractic treatment is necessary given the chronic pain diagnoses by Doctors Pang, Mitsopulos, Karantonis, Chen and Scher. I should also note that I did not find the Minor Injury Guideline to be in dispute in this matter. The insurance company had removed the applicant from the Minor Injury Guideline although there is some indication that the respondent draws a line between a removal due to only psychological complaints and not physical. I find that that the evidence of impairments, as set out below, show that, even if the Minor Injury Guideline was in dispute, which I find it was not, would not be a bar to receiving the claimed chiropractic treatment.

Specific Physical Impairments

32The physical impairments experienced by the applicant were contested by the respondent. A review of the applicant’s diagnoses is essential to ensure an accurate representation of the impairments resulting from the subject accident.

33Dr. Pang ordered x-rays to determine the cause of the reported pain. An x-ray of October 15, 2015 of the cervical spine showed degeneration in the lumbar spine and narrowing of L4-5 disc. There was also signs of mild degenerative change in the facets from L4 to S1. Dr. Chin, who conducted the x-ray, indicated that there was cervical pain or muscle spasm and degenerative disease in the discs mentioned. Dr. Chin conducted a further test on February 9, 2016 and again found degenerative spurring in the middle of the cervical spine, slight degenerative change in middle and lower facets, mild degenerative change in both knees and mild disc disease in L4-5.

34A CT lumbar spine scan of March 3, 2016, requested by Dr. Pang, showed disc bulging in the L4-5 as well as anterior osteophytes, facet arthropathy and degenerative changes between spinous processes in L3-4 and L4-5. There were no fractures found and no compression of the spinal canal or the exiting nerve roots.

35Dr. Pang’s notes of October 14, 2015 show that the applicant complained of headache, neck pain, low back pain and dizziness. The complaints of pain are consistent during as many as 15 follow-up assessments with the applicant between October 21, 2015 and July 18, 2016. The applicant continued to complain of similar impairments to those he experienced right after the accident at each of these visits with Dr. Pang.

36The applicant started seeing a new family physician, Dr. F. Karantonis, on July 15, 2016. On July 26, 2016, the applicant was prescribed Tylenol 3 and Celebrex and the notes suggest he was diagnosed with chronic back pain as a result of the subject accident. Dr. Karantonis reported in his notes of July 26, August 23, August 31 and October 4, 2016 that the back pain was being controlled with Celebrex.

37On September 29, 2016, Dr. Gale, Pain Specialist, wrote to Dr. Karantonis following a physical examination. His diagnosis was that there is a biomechanical disorder of the spine with increased dorsal kyphosis and there is lumbar spondylosis demonstrated in his lumbar CAT scan. He recommended Gabapentin 300 mg, exercise, physiotherapy, nerve blocks and a heating pad.

38On October 6, 2016, Dr. R. Roussev, Neurologist, wrote to Dr. Karantonis with his findings regarding the applicant’s condition and complaints. He found that head, neck and leg movements were normal, but found positive for Carpal Tunnel Syndrome in both the wrists.

39Dr. Karantonis reports in his notes on November 7, 2016, that the applicant had a fall from that week where he hit the back of his ribs. The applicant continued to received Tylenol and Celebrex and on January 5, 2017, Dr. Karantonis finds that the applicant is “doing much better”. This same improvement to the back pain was noted on visits of January 19 and February 23, 2017.

40Dr. Gale saw the applicant for a follow-up and wrote to Dr. Karantonis on March 16, 2017. He restates his diagnosis as lumbar spondylosis, cervical spondylosis, cervicogenic headache and biomechanical disorder of the spine. He points to x-rays of July 2, 2016 as showing osteopenia in the lumbar region, which, although mild, was likely an insignificant compression fracture of L1, degenerative disc changes, narrowing of the disc and osteophytes at L4-L5. He recommended continuing on Gabapentin tablets 1-3 times daily and to start Vimovo tablets twice a day, along with exercise and calcium tablets for osteoporosis.

41On June 22, 2017, Dr. Gale again confirmed his previous diagnoses of low back pain associated with disc and osteophytes at L4-L5 and osteopenia. He referred him to Allevio Clinic for lumbar epidural steroids.

42Dr. Y-F Chen, physiatrist, assessed the applicant and issued a report on July 23, 2018. In his report, Dr. Chen diagnosed the applicant with sprain and strain injuries of the spine, as well as post-traumatic headache, anxiety and mood disturbances. These clinical diagnoses were supported by his observations and those reported by other medical physicians, including sprain and strain injuries of the spine and limb muscles, shoulder dysfunction at the right shoulder, left lower limb numbness, post-traumatic headaches, post-traumatic insomnia, post-traumatic anxiety and mood disturbances, chronic pain disorder and symptomatic flares of degenerative disc changes in the spine.

43The diagnoses are consistent with the medical information available. Dr. Chen noted that these diagnoses led to impairments such as loss of physical endurance, range of motion in the spine and shoulder, sensation in left leg, sleep rhythm and emotional and psychological wellness. I accept these impairments as an accurate summary of the other medical information and his own assessment.

44Dr. Chen also evaluated the applicant’s ability to perform the essential tasks of a taxi driver. Dr. Chen notes that he has not returned to work since the subject accident, likely because he is limited in his ability to sit for long periods of time, operate a steering wheel, lift luggage and assist patrons. Dr. Chen notes other affected activities, including impairment to the applicant’s ability to conduct housekeeping and home maintenance. He could not perform the same duties as before and requires assistance from his wife and children. Dr. Chen believes that a full recovery to pre-accident levels of function was not possible. He found it likely that the applicant would be “forced to retire early and remain incapable of resuming his pre-accident homemaking and home maintenance duties”.

45Dr. Hal Scher, treating psychologist, concluded in his report of August 18, 2018 that the applicant continues to experience physical impairment. While the applicant reported being able to return to driving, he could not do so for more than 60-90 minutes. Also, the more pain he experiences from sitting, the worse his emotional condition becomes and his ability to deal with the public would be impaired.

46Dr. Scher concludes that the psychological impairments experienced, caused by the subject accident, are of a “serious nature” and will cause a permanent inability to engage in employment. The psychological impairments and chronic pain syndrome will prevent him from working as a taxi driver on a permanent basis. Specifically, Dr. Scher found that he could not sit for long periods and doing so would cause him distress due to his anxiety and phobias. He found that the applicant’s conditions, along with a lack of transferable skills, age and English second language lead to a complete inability to work in any job or a return to homemaking and home maintenance activities. The applicant will be prone to ongoing depression and will likely require ongoing treatment and medication for this issue.

47Surveillance evidence of August 5, 6, 12 and 15, 2018 showed that the applicant had resumed some diving for personal reasons (trips of 30 minutes to 1.5 hours) and chores, such as shopping.

Resulting Psychological Impairment

48Dr. Pang did not make any mention of psychological impairments following either the 2014 accident or the subject accident.

49Dr. Karantonis initially noted in his notes of July 15, 2016 that there was “no depressed mood or anxiety”.

50On October 31, 2016, Dr. Karantonis’s notes state that the applicant was “down everyday” and that the “chronic pains were getting to him”. The notes also state that the applicant suffers “chronic depression”. He reported mental struggles due to the pain and impact of his chronic pain on his personal and professional life.

51Dr. C. Soulious, Psychiatrist, wrote to Dr. Karantonis on November 23, 2016 regarding the applicant’s psychological health. After a review of his symptoms, including flashbacks, phobia of driving, depressed mood and guilt, he diagnosed the applicant with PTSD, depression and fear of driving. Dr. Soulious referred the applicant to Dr. Mitsopulos for cognitive behaviour therapy.

52Dr. J. Mitsopulos, Psychologist, conducted a 3-hour psychological assessment on July 24, 2017 and issued a report on September 14, 2017. In the report, she reviews medical information, applicant’s information and test results. She concluded that the applicant suffered from the following diagnoses: Adjustment Disorder (anxiety & depression), Somatic Symptom Disorder with Predominant Pain, Persistent Type and a Specific Phobia (driving).

53Dr. Mitsopulos reviewed medical information, including Dr. Finkel’s, psychiatrist, IE report of March 29, 2017 (which found no evidence of depressed mood) and historical medical information. The applicant reported to Dr. Mitsopulos that he has not worked since the subject accident due to pain and limitations. She noted that a degree of driving anxiety is present, although the pain is the primary limitation. The applicant reported that he tried to return to work but could not tolerate prolonged sitting. He leased out his license plate and does not have use of his car. He reported he has not been able to perform all of the maintenance and house chores since his accident. He has started vacuuming and mopping, but slowly. He reportedly tried to cut grass, but the back pain escalated. The applicant reportedly had no psychiatric history prior to the subject accident. He stated he continued receiving physiotherapy and massage therapy for his injuries.

54I accept Dr. Mitsopulos’s findings, as she is a qualified Psychologist and applied the Beck Depression Inventory-II (“Depression Measure”) and the Beck Anxiety Inventory (“Anxiety Measure”) which are standardized measures that help ensure objectivity in assessing psychological conditions. The Depression Measure indicated severe depressive symptoms and the Anxiety Measure indicated severe symptoms of anxiety. She found that these symptoms are consistent with diagnoses of adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, persistent, moderate, and finally, a specific situation phobia to driving. She recommended 14 sessions of cognitive behavioural therapy as treatment.

55Dr. Mitsopulos authored a psychological therapy report on July 19, 2018 further to her review of the applicant and the completion of 14 psychological treatment sessions. This doctor found that the applicant participated fully in the sessions, focusing on stress and pain management. The applicant made improvements to sleep and day routine and was actively trying to manage negative thought patterns. He still felt worried and frustrated by ongoing pain in his low back and inability to work and return to pre-accident activities. The applicant stated his shoulder was more painful recently and low back locks up when he bends. He has neck pain when he sits for long periods and has headaches when stressed. The applicant’s diagnoses were found to continue to meet DSM-5 and ICD-10 diagnoses for adjustment disorder and somatic symptom disorder. His driving anxiety has lessened, and he no longer met that criteria. The applicant was driving daily for short distances. Further sessions were recommended to continue progress.

56On March 13, 2018, Dr. Karantonis’s clinical notes state that the applicant’s anxiety symptoms are better, but he needs to refill his Trindellix prescription to assist but cannot afford it.

IE Assessors and Respondent’s Position

57The applicant attended a Multi-Disciplinary IE appointment with several assessors on May 5, 2016. In a letter of June 17, 2016, the respondent wrote to the applicant to indicate that the reports were to assess the entitlement to Income Replacement Benefit. Based on this report, the respondent took the position that the applicant is denied entitlement as of June 30, 2016, as he does not suffer a substantial inability to perform the essential tasks of his pre-accident employment (taxi driver).

58The Physiatrist, Dr. Bentley notes that the applicant reported continuing to experience pain at a 10/10 level in the back, neck and shoulders with same level of dizziness and headaches and no improvement since the accident. In Dr. Bentley’s opinion, the applicant suffered Whiplash Type II with headaches - which impaired his cervical spine range of movement and restricted should range movement – and a Lumbar spine sprain/strain – impairing his lumbar spine movement and restricting his hip flexion movement. Dr. Bentley concluded that these impairments, which he classified as minor injury sprain and strains, were surely aggravated by the subject accident - but not entirely caused by it - and that the applicant has reached maximum medical recovery.

59Dr. Margaliot, the neurologist, conducted a physical examination and noted some reduced motion in the shoulders and head side to side. The diagnoses included chronic daily headaches, treated with Naproxen 3 times daily. The doctor noted this much medication may consist overuse and may aggravate symptoms. The pain was found to originate in the upper back and neck, consistent with the whiplash diagnoses. The neurological impairments were not deemed to have reached maximum medical recovery. The doctor viewed this accident as causing minor injuries and recommended that instead he start prophylactic headache medication and reduce the Naproxen to twice a week. Local injectable therapy was also stated as an option.

60Ms. Becker, Kinesiologist, conducted a National Occupational Classification (NOC) and Dictionary of Occupational Titles (DOT) on the applicant’s work as a taxi driver. She was unable to conduct a FAE in-person as the applicant did not attend the scheduled assessment.

61I find that the applicant was employed with [a taxi company] for 25 years as a taxi driver and purchased his own licence. He typically worked 6 days a week from 9:30 a.m. to 6:00 p.m. sitting and driving during this time.

62Ms. Becker assessed the applicant’s work as NOC 7513 - “Taxi and limousine drivers and chauffeurs”. I accept the description of these duties and the physical demands of the work for the purpose of assessing the claim of income replacement benefit.

63The NOC describes a taxi driver’s duties as driving an automobile to transport passengers, including picking up passengers in taxicabs, helping passengers with luggage and with boarding and exiting vehicles, collecting fares, maintain travel logs, communicating with dispatch as well as cleaning and making minor repairs. This type of job can be by employment or may be self-employed. As the applicant was self-employed, I find that the relevant experience and training would likely include safe driving experience, a Class G driver’s licence, knowledge of the geographical area and a municipal permit. The job requires medium strength.

64On January 18, 2017, a paper review was conducted to assess updated information provided to the IE assessors. Dr. Bentley’s opinion was unchanged. Dr. Margaliot also maintained his opinions. I highlight that the latter states that “from a purely neurological perspective, as a direct result of the subject MVA, the claimant sustained chronic daily headaches with migraine features” and returned to the same medication management stated in the initial report, as noted above.

65On March 22, 2017, Dr. Finkle, psychiatrist, provided a review of the applicant’s mental status of the applicant. He concluded that psychological evaluation was reasonable and necessary, given the depressed mood and the referral by his treating psychiatrist and because he has not returned to work. Dr. Finkel reviewed the applicant’s medical information, self-reports and personal information. This doctor found there to be no pre-accident psychiatric history but currently sees the applicant as suffering from a psychological condition which is at least practically directly and causally related to the subject accident. Other possible causes include the loss of a family member one year ago and psychiatric issues linked to pre-accident chronic pain. He agreed treatment was required, such as antidepressant agents.

66An IE psychiatric report was prepared on August 20, 2018 by Dr. V. Sivasubramanian, psychiatrist. He concluded “from a purely psychiatric perspective” the applicant is suffering from a Major Depressive Disorder of mild to moderate severity along with a relatively minor phobia of driving or being a passenger. This doctor found that the normal course is for this depression to subside after 1 year, but that 3 years on, the symptoms continue due to a perception of physical pain and impairment. He did not believe that the applicant had reached maximal medical recovery for psychological issues of Major Depressive Disorder caused directly by the subject accident.

Preliminary Issue – Non-Attendance of IE Assessment

67The respondent raised an issue that the Income Replacement Benefit is not payable due to the applicant’s non-attendance at a s.44 FAE with a kinesiologist scheduled for May 9, 2016. The respondent claims this was reasonable and necessary given that it was different than the physiatry and neurological assessments and would provide a functional evaluation specific to the applicant’s pre-accident employment requirements.

68The respondent suspended the Income Replacement Benefits on May 10, 2016 due to the failure to attend.

69The applicant states that he attended the physiatry assessment and a neurological assessment and that the benefits were previously suspended given that he was found to be in the Minor Injury Guideline, not any other reason.

70I agree with the applicant that the respondent is entitled to examine the insured to determine eligibility to benefits, “but no more often than is reasonably necessary”, as set out under s. 44(1) of the Schedule. I find that the FAE was not reasonably necessary given the circumstances in this matter. The neurological and physiatry assessments were ample opportunity to examine physical limitations, along with substantial information from the applicant’s treating physicians. I find that a kinesiologist would not be able to comment more specifically on medical impairments more than what was already obtained. The job duties and information provided regarding the taxi driver position was sufficient to instruct the IE assessors on the job duties and impairments. The respondent was able to examine the applicant as much as was reasonably necessary regarding the income replacement benefit. Thus, the preliminary issue is dismissed.

But For Subject Accident, Impairments Not Occurring

71The respondent argues that the cause of the applicant’s impairments is at issue in this hearing. The applicant would potentially not be entitled to certain benefits if his medical condition stems from other causes aside from the subject accident.

72The respondent states that the correct test for this is to determine whether the balance of evidence shows that the applicant’s impairments would not have occurred but for the subject accident. I agree with the respondent that this is the test to be applied in this matter.

73I find that that causation does not impact the benefits claimed by the applicant in this matter.

74The applicant states that there has been consistent reporting and testing by several physicians that are sufficient to show the applicant’s impairments to be caused by the subject accident, rather than any other source.

75I found that the pre-existing conditions of the applicant had resolved by the time of the subject accident. Furthermore, I find that the reports of the applicant to Dr. Pang and Dr. Karantonis to be consistent, as set out above in the review of the evidence of the applicant’s impairments. He complained early of pain and these complaints were documented and detailed by Dr. Pang in his clinical notes and referrals to pain specialists and prescriptions for pain medicine. Dr. Karantonis made similar observations of pain to the back, neck, hands and began documenting depression and anxiety as a result of the subject accident. Dr. Gale noted in September 2016 that chronic lumbar pain followed the subject accident. Dr. Roussev also found in October 2016 that neck and back pain appeared following the subject accident. Dr. Chen confirmed in July 2018 that the pain impairments are directly caused or made worse by the subject accident.

76Regarding psychological impairments, I will not repeat my findings, set out above, but will say that the balance of probabilities shows that the documented psychological impairments result from the subject accident.

77The respondent states that the diagnostic records show only soft tissue injuries and that the evidence tends to show a continuation of pre-existing impairments. I disagree. The diagnostic may show some effects of pre-existing conditions, but I found that the symptoms of any pre-existing condition resolved themselves prior to the accident. The evidence shows, on balance, that the applicant’s physical and psychological impairments would not have occurred but for the subject accident.

IRB – Substantial Inability to Perform Essential Tasks

78The applicant is entitled to Income Replacement Benefits from the date of denial, June 30, 2016 to October 13, 2017 (up to 104 weeks post-accident). The applicant submitted that he sustained an impairment from the accident of October 13, 2015 that left him substantially unable to perform the essential tasks of his employment as a taxi driver and I accept this submission.

79The applicant claims that he suffers a substantial inability to perform the essentials tasks of the job of taxi driver within 104 weeks post-accident. The applicant also states that he is completely unable to engage in any employment for which he is reasonably suited by education, training and experience.

80I find that there is sufficient evidence to show that, but for the accident the applicant would have been able to continue driving a taxi. In other words, I find on a balance of probabilities that the applicant suffered a substantial inability to perform the duties of a taxi driver. The duties of a taxi driver are described above.

81It was essential that the applicant be able to drive a vehicle around from 9:30 am to 6:00 pm. The Psychological Assessment Report of Dr. Scher of August 18, 2018 clearly outlines how the applicant was incapable of completing his duties.

82Specifically, the applicant was not able to safely transport passengers for the hours that he was working previously. A round trip lasting more than 90 minutes would have put both him and the passenger at risk due to the mental impairment and would have been compounded by his back pain. I find that he would have been substantially unable to complete this during an 8.5-hour work day. He would have experienced pain due to the sitting and holding the steering wheel. This in turn would have exacerbated his mental and emotional condition due to the finding of chronic pain syndrome.

83The respondent submits that there were pre-existing conditions that raise questions about the cause of the impairments linked to the claim of income replacement benefits. Specifically, the respondent states that a multidisciplinary assessment of June 14, 2016 confirms that the applicant had pain in his neck, lower back, left shoulder and bilateral knees prior to the accident. I reject these findings. My review of the impairments above is sufficient to satisfy me that the subject accident caused the substantial inability to drive taxi.

84The IE assessors Dr. Bentley, Maragliot and Finkel all answered stock questions regarding whether the applicant suffers a substantial inability to perform the essential tasks of his employment. The answers are invariably answered by the negative. I find that the reasons for the negative answers are not at all detailed and baldly come to a conclusion on the legislative test for income replacement benefits without providing the medical reasons to support such a contention. The impact of the medical conditions on specific work duties are not considered by the IE assessors and I reject their evaluation of a substantial inability to complete the essential duties.

85I contrast this with Dr. Chen’s specific and detailed analysis of specific impairments affecting specific duties. I prefer Dr. Chen’s evidence to any of the IE assessors’ reports on the income replacement benefit. Dr. H. Scher’s report of August 18, 2018 further comments on the lack of consideration by these IE assessors on the income replacement benefit analysis.

86The fact of the matter is that the applicant was able to drive prior to the accident and continued to do so, whether full-time or part-time. The medical evidence shows that he was in more pain and in greater mental distress after the subject accident. He was even observed in the initial driver assessment report of November 4, 2017 to have demonstrated anxiety/fear errors and took breaks due to back pain. It appears that the level of these impairments had improved by the final report of March 23, 2018. I find that that there was an impairment that resulted from the subject accident, whether it was a new impairment (in the case of the psychological complaints) or an aggravation of the pre-existing conditions (in the case of the bodily strains and pains).

87I find that the level of impairment, as reviewed above, caused a substantial inability to perform his essential duties. But for the accident, the applicant would have continued driving taxi. While the respondent submits that the applicant had functional abilities “sufficient” for driving, I find that the evidence shows that the applicant did not have the physical or mental capacity to drive safely and continuously to a level that would allow him to perform the essential tasks of employment. He suffered a substantial inability to perform these tasks.

IRB – Ability to Engage in any Employment or Self-Employment

88The applicant cannot be said to have a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. I prefer the evidence of the IE assessors on this point given that several treating physicians agreed with them that the applicant’s condition had improved and he was observed to be driving by driver assessors as well as in surveillance.

89The threshold for a complete inability is a higher threshold than showing a “substantial inability” required in the 104 weeks following the accident. I find that the applicant would have been able to resume some driving duties 104 weeks post-accident, enough to say that he did not suffer a complete inability. The family doctor’s notes showed medical improvements that would have allowed for some driving with accommodations or breaks.

90For example, Dr. Mitsopulos found in her July 18, 2018 report that the applicant no longer met the criteria for a diagnosis of driving anxiety that previously contributed to his substantial inability to drive. Dr. Karantanis observed physical and psychological improvements due to use of medication for pain and cognitive behavioural therapy for psychological issues.

91In support of the respondent’s position, I find that the driver assessment reports are compelling and show that the applicant had the ability to drive a taxi to some degree by November 4, 2017 and even more successfully by March 23, 2018, as detailed in the two driver assessment reports of those two dates. No further on-road training was deemed required further to the March 23, 2018 report. The progression during this time shows some ability to drive. The surveillance also showed that in August 2018, the applicant was driving his own vehicle and completing housework.

92The applicant relies on several medical reports to support his contention that he suffers a complete inability to work other jobs based on his training, education and experience. I do not accept this contention on a reading of the medical evidence presented. I find that the statements were specifically in line with the job of taxi driver and that little or no effort was made to determine why other jobs could not be completed. The applicant did not provide the evidence required to demonstrate that other jobs have been looked as possibilities.

93Dr. Scher concluded that the applicant suffers a complete inability to work any job but offers no explanation of what these jobs may be.

94Dr. Chen notes in his Physiatry Assessment Report of July 23, 2018 that the applicant would have likely continued to work as a taxi driver. He also states that the applicant suffers from an inability to complete daily chores and home maintenance that require bending and that he is not capable of resuming his pre-collision housekeeping and home maintenance duties. The respondent contests this report and submits that it is based solely on self reporting and is unreliable. I find that despite a “poor” prognosis of a return to work, evidence must be shown to support this prognosis and must also take into account what work is available.

95I accept that the evidence relating to the post-104-week period shows that the prognosis was not as “poor” as suggested. Contrary to Dr. Chen’s findings, the IE assessors, Dr. Bently, Dr. Margaliot and Dr. Finkel’s evidence were that the applicant’s condition had improved physically and psychologically such that he is not suffering a complete inability to engage in any employment or self-employment for which he was reasonably suited. As stated above, the applicant’s treating physicians observed physical and psychological improvements. The driver assessors observed these same improvements in the applicant, which lends weight to the respondent’s position. Further, the surveillance confirms that driving had resumed to some degree, as did house hold chores. I conclude that the prognosis could not be as “poor” as Dr. Chen states.

96Next, I must assess what other jobs the applicant is reasonably suited for on the basis of training, education and experience.

97The applicant’s highest formal education achieved was grade 6. He is not formally educated for specific jobs. English is his second language.

98I find that the applicant’s training and experience relates mainly to driving and navigating a car in a city setting. I accepted above that the applicant has a substantial inability to complete his taxi driving duties but concluded that there are other driving opportunities that were not investigated. 104 weeks post-accident, the driving anxiety had largely subsided, and pain was manageable with the help of medication. The applicant’s drive test reports showed that he improved by November 4, 2017. I find he kept improving from that date until he was found positive for resuming some driving work as of March 23, 2018 as no further on-road training was required.

99The NOC referred to above includes duties of chauffeuring other vehicles, such as limousines. I find that the applicant could have resumed other work as a driver, whether returning to driving taxi, with accommodations, or Uber, or food delivery, or other chauffeuring. He could work part-time as a taxi driver, taking breaks, working limited hours or finding specific clients that allow him to not sit for long periods.

100Regarding other experience, I find that there was some evidence that the applicant works part-time as a property manager and that he knows and understands caretaking. The applicant does not appear to have seriously investigated this as an opportunity for work. I understand that he reported to his treating physicians and IE examiners that he has not returned to household chores or household maintenance and gardening since the accident, as he is limited due to pain, bending, standing and repetitive movements. However, surveillance showed that he was completing physical activity, driving occasionally and he likely would be able to complete certain chores that do not require sitting or driving for extended periods of time.

IRB – Quantum

101The claimed quantum of income replacement benefits by the applicant was initially $400 per week. The applicant was a self-employed taxi driver and the evidence of earnings and the accounting report show that the quantum must be less than this.

102The respondent contested the quantum in pointing to s. 4(3) of the Schedule. This section applies to self-employed people and states that the applicant’s revenues less business expenses is the amount to be considered as income for the purpose of the Schedule. The respondent provided their own calculations and applied formula set out in s. 4(3) of the Schedule, which is to take 1/52 of annual income, times 70%, to arrive at the weekly Income Replacement Benefit.

103The applicant relied on a report prepared by the accountant, Ian Wollach. I accept this report over the calculations by the respondent as it takes into account financial documents such as the OCF-2, income tax returns from 2009-2016, notice of assessment for 2014 and other documents. In accepting this report, I adopt the following calculations for the entitlement to Income Replacement Benefits:

i. $272.29 per week from October 20, 2015 to December 31, 2015;

ii. $159.05 per week from January 1, 2016 to October 9, 2017; and

iii. $185.00 per week from October 10, 2017 to 104 weeks post-accident.

In-Home Assessment

104The applicant is entitled to the In-Home Assessment (OCF-18) completed by Naomi Gallor of Access Rehab Inc. of February 17, 2016 in the amount of $1,582.00. The respondent denied this benefit for the medical reasoning that they view the applicant only suffered a minor injury and that the psychological removal from the minor injury guidelines does not make this in-home assessment reasonable and necessary.

105I find that the applicant suffered a chronic pain disorder on the basis of the multiple treating doctors’ information, including findings and diagnoses of Drs. Mitsopulos, Karantonis, Chen and Scher. The request for this benefit is reasonable given the multiple subjective reports by the applicant of his impaired housekeeping duties and the professional assessments of the medical physicians that found limitations that would impact housekeeping duties. The benefit is necessary in order to determine the extent of the applicant’s needs for functional assistance in the home.

COSTS

106I reject the respondent’s claim for costs. No submissions or evidence was provided by the respondent that would allow me to make a finding under the Tribunal’s Rules of Practice relating to whether a party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith (i.e., see Rule 19.1, see also s. 17.1 of the SPPA).

ORDER

107The applicant is entitled to income replacement benefits from June 30, 2017 to 104 weeks post accident for amounts as follow:

i. $159.05 per week from June 30, 2016 to October 9, 2017; and

ii. $185.00 per week from October 10, 2017 to 104 weeks post-accident.

108The applicant is not entitled to income replacement benefits beyond 104 weeks following the accident.

109Regarding medical benefits, the applicant is entitled to the treatment plans and medication expenses claimed that were not withdrawn, as follow:

i. $1,582.00 for an in-home assessment by Access Rehab, as submitted on February 17, 2016;

ii. $1,715.00 for a medical benefit for chiropractic services as recommended by Dr. Galotos in a treatment plan submitted on March 8, 2017;

iii. OCF-6 claimed expenses of December 5, 2018, including:

a. $29.84 for Gabapentin;

b. $65.00 for two wrist braces with steels; and

c. $23.56 for Gabapentin;

iv. OCF-6 claimed expenses of March 14, 2017, including:

a. $33.46 for Gabapentin;

b. $33.46 for Gabapentin;

c. $90.42 for Vimovo; and

d. $143.38 for Vimovo.

110Interest is payable on any overdue benefits in accordance with s. 51 of the Schedule.

111Costs are not awarded in this matter.

Released: September 17, 2019

Matthew M. Létourneau

Adjudicator