[L.P.] v. RBC General Insurance Company, 2019 CanLII 101549

Citation: [L.P.] vs. RBC General Insurance Company, 2019 ONLAT 18-000643/AABS

Date: September 5, 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:

[L. P.]

Appellant(s)

and

RBC General Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the applicant: Davin Tamber, Counsel

For the respondent: Jessica Bacopulos, Counsel

Written Hearing on: December 20, 2018

I. OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on December 19, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (the “MIG”). The applicant’s position is the opposite.

3If the applicant’s position is correct, then I must address the issue of whether the medical treatments and cost of examinations claimed are reasonable and necessary. If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule. In that case, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the applicant has already exhausted the $3,500.00 maximum benefit for minor injuries.

4I must also determine whether the applicant, who worked as a machine operator at a linen cleaning service at the time of the accident, is entitled to an income replacement benefit (“IRB”).

II. ISSUES

5The issues in dispute are as follows:

(i) Is the applicant entitled to receive a weekly IRB in the amount of $251.15 per week for the period from June 29, 2016 to present and ongoing?

(ii) Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

(iii) If the applicant’s injuries are not within the MIG, then based on the issues in dispute listed in the order of the case conference Adjudicator issued August 28, 2018 and the treatment plans included in the parties’ materials, I must determine the following issues:³

(a) Is the applicant entitled to receive a medical benefit for chiropractic and massage therapy services⁴ for the following amounts:

(b) $3,652.00 recommended by Dr. Nevin Wadehra, chiropractor of MacKenzie Medical, in a treatment plan submitted January 18, 2016, denied by the respondent on February 3, 2016?

(c) $2,027.00 recommended by Dr. Ayden Banibashar, chiropractor of MacKenzie Medical, in a treatment plan submitted June 14, 2016, denied by the respondent on August 3, 2016?

(d) $1,418.00 recommended by Dr. Banibashar of MacKenzie Medical in a treatment plan submitted July 26, 2016, denied by the respondent on August 3, 2016?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $4,306.08 for a chronic pain program recommended by Dr. Alireza Kachooie of the Rehab Centre in a treatment plan dated June 16, 2016, denied by the respondent on June 30, 2016?⁵

(v) Is the applicant entitled to payments for cost of examinations in the amount of $2,258.88 for a psychological assessment, recommended by Dr. Betty Kershner, psychologist of All Health Medical Centre in a treatment plan submitted May 17, 2016, denied by the respondent on June 8, 2016?⁶

(vi) Is the applicant entitled to payments for cost of examinations in the amount of $2,200.00 for an orthopaedic assessment recommended by Dr. Darryl Ogilvie-Harris of All Health Medical Centre, in a treatment plan submitted August 5, 2016, denied by the respondent on August 13, 2016?

(vii) Is the applicant entitled to an award under s. 10 of Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant?

(viii) Is the applicant entitled to interest on any overdue payment of benefits?

(ix) Is the applicant entitled to his costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith? ⁷

III. RESULT

6I find that the applicant sustained a psychological injury and has developed chronic pain syndrome as a result of the accident and that her injuries are not minor. Her injuries fall outside of the MIG. The treatment plan for a chronic pain program is partially reasonable and necessary. She is entitled to the cost of a psychological examination and an orthopaedic examination. Her claims for one of the three treatment plans for chiropractic and massage therapy services is granted but the remaining two claims for treatment plans for chiropractic and massage therapy services are dismissed.

7I find that the applicant is entitled to IRBs up to 104 weeks. She has not proven on a balance of probabilities that she meets the stricter test of entitlement for IRBs beyond December 19, 2017.

8The applicant is entitled to interest on overdue benefits. Her claim for an O. Reg. 664 award is dismissed.

IV. ANALYSIS

A. The Minor Injury Guideline

9Section 3(1) 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean and sets out the time periods and types of treatment for minor injuries. Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident in respect of an insured person who sustains an impairment that is predominantly a minor injury. The onus is on the applicant to show that her injuries fall outside of the MIG.⁸

10It is uncontested that the applicant sustained soft tissue injuries to her neck, right shoulder, low back and left knee. However, the applicant argues that she should be removed from the MIG because she sustained:

a. a psychological injury/impairment;

b. chronic pain syndrome; and

c. a radicular or nerve injury.

(i) Psychological Injury

11The applicant claims that she sustained a psychological injury as a result of the accident that takes her claims outside of the MIG. Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. I agree with the applicant and find that she has a psychological injury that takes her out of the MIG for the following reasons.

12The applicant was assessed by Dr. Konstantine Zakzanis, psychologist, in an insurer’s examination (“IE”) at the request of the respondent on June 1, 2016.⁹ She advised Dr. Zakzanis that she had transient headaches and body pain, both of which vary in severity. She was experiencing sleep disruption due to her pain complaints and was, therefore fatigued. While she experienced occasional feelings of helplessness, guilt, sadness and frustration, she denied feeling depressed, hopeless or worthless, but described symptoms of anxiety. Dr. Zakzanis reported that the validity measures on the applicant’s psychological testing indicated she did not feign or exaggerate her complaints and her test results were congruent with her somatic concerns. He diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. However, his opinion was that the applicant’s psychological impairments did not cause a disability. The applicant denied any interest in psychological treatment. Dr. Zakzanis reported that her mood had improved and would continue to improve. He did not comment on whether the psychological impairment impacted the applicant’s ability to reach maximal medical recovery within the MIG.

13Dr. Betty Kershner, psychologist, assessed the applicant on June 17, 2016.¹⁰ She also diagnosed the applicant with an Adjustment Disorder, with Depressed Mood and reported that she had a moderate level of depression. On testing, the applicant’s anxiety levels were mild. Dr. Kershner recommended psychological treatment but did not report on the applicant’s interest in undergoing the treatment.

14Dr. Kershner and Dr. Zakzanis agree that the applicant suffered an impairment as a result of the accident and agree on the diagnosis. Where they disagree is whether psychotherapy is recommended. I find that, just because the applicant did not express an interest in psychological treatment at the time of her assessment with Dr. Zakzanis, it does not mean that her psychological impairments will have no affect on her ability to reach maximum medical recovery. She could changer her mind about psychological treatment, at which point limiting her access to treatment due to the MIG, despite having a psychological impairment, could be detrimental to her health. For this reason, I find that the applicant’s psychological impairments take her out of the MIG.

(ii) Chronic Pain Syndrome

15The parties agree that chronic pain syndrome, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions. The parties agree that chronic pain syndrome is a severe debilitating condition distinct from ongoing or recurring pain.

16The applicant relies on the opinion of her orthopaedic expert, Dr. Darryl Ogilvie-Harris,¹¹ and submits that she has a chronic pain syndrome. Dr. Ogilvie-Harris stated that the applicant’s scores on a pain disability questionnaire pointed to a combination of physical and psychological issues as will be found in a patient with a chronic pain syndrome. He further stated that a chronic pain syndrome is said to exist where the pain has been present for six months or more. The pain is intrusive in nature and affects all of a patient's activities. It is felt to be due to changes in the neurotransmitter such as dopamine and substance-P. The pain then tends to become diffuse and nonanatomic. It is associated with psychological and emotional difficulties, a sleep disturbance and poor endurance. Dr. Ogilvie-Harris reported that the applicant has these features.

17The respondent asks that little weight be given to Dr. Ogilvie-Harris’ opinion because he did not provide a diagnosis of chronic pain syndrome. He stated the applicant’s presentation suggested features of a chronic pain syndrome with central sensitization. Aviva submits that the applicant’s claim of chronic pain should be assessed against six criteria described in the American Medical Association (“AMA”) Guides,¹² which state that at least three of them must be met for a diagnosis:

(1) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

(2) Excessive dependence on health care providers, spouse, or family.

(3) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

(4) Withdrawal from social milieu, including work, recreation, or other social contacts.

(5) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

(6) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

18These criteria were accepted by Adjudicator Ferguson in 17-007825 v. Aviva Insurance Canada¹³ as key factors in assessing an applicant’s claim of chronic pain. The applicant relies on the Financial Services Commission of Ontario decision in Abyan v. Sovereign General Insurance Company.¹⁴ In that case, it was noted in the past that the term “chronic pain” has been applied to pain of greater than 6 months’ duration. On that definition, I find that chronic pain may be mere sequelae of accident injuries and is not necessarily functionally disabling. Many people have pain that lasts longer than 6 months and are able to continue on normally with their lives regardless of the pain. I find that chronic pain is distinct from chronic pain syndrome, which is functionally disabling as described by Dr. Ogilvie-Harris and consists of the factors adopted by the AMA Guides. For these reasons, I agree with Adjudicator Ferguson and accept the AMA Guides criteria as factors in determining if an applicant has chronic pain syndrome.

19The respondent submits that the applicant does not meet three out of the six AMA Guides criteria for chronic pain syndrome. I disagree with the respondent and find that the applicant has chronic pain syndrome for the following reasons.

20The applicant’s pain complaints in June 2016 were transient and intermittent and ranged from 4/10 to 8/10 severity on a pain scale without medication to 0/10 to 2/10 with medication.¹⁵ By July 2016, she reported continued improvement to Dr. Bashir.¹⁶ However, by the time she saw Dr. Ogilvie-Harris in January 2017, all of her pain complaints had worsened, except for her knee, which had improved only slightly.

21The applicant has been consistent in telling all of the assessors that she is unable to care for her children, shop, cook, clean or do outdoor maintenance in the same manner as she did pre-accident. I have no reason to doubt the truthfulness of what the applicant has advised various assessors. She told Dr. Ogilvie-Harris that she can do light housekeeping activities of short duration and estimated that she only does 40% to 50% of what she did previously. She receives assistance in caring for her children and performing her household chores from her mother-in-law, brother-in-law and friends. This is evidence of dependency on others.

22The respondent submits that the applicant did not withdraw from social contracts or recreation. It relies on her report to Dr. Zakzanis that her friends came to see her after the accident and she liked that. However, the applicant has consistently told assessors that she no longer attends temple at the same frequency. Her failure to return to work is a clear withdrawal from work. This is evidence of social withdrawal.

23The applicant has developed psychosocial sequelae as evidenced by the opinions of Dr. Zakzanis and Dr. Kershner.

24The applicant limits her activities due to fear of pain and from fatigue from her sleep disturbance due to her pain complains. This is evidence of failure to restore her pre-injury function.

25On a balance of probabilities, the applicant satisfies no less than three out of the six AMA Guides criteria for chronic pain syndrome. I find that she has chronic pain syndrome, and, for this reason, she does not have a minor injury and the MIG does not apply to her.

26Because I have found the applicant’s injuries to fall outside of the MIG, I need not consider whether she has a radicular or nerve injury that takes her out of the MIG.¹⁷ I must now determine whether the claimed treatment plans are reasonable and necessary. The onus is on the applicant to show that each treatment plan is reasonable and necessary.

B. Entitlement to Medical Benefits

(i) Chiropractic and Massage Services and a Chronic Pain Program

27The applicant is claiming entitlement to the cost of three treatment plans for chiropractic and massage therapy services. She must prove, on a balance of probabilities, that the treatment plans are reasonable and necessary expenses incurred as a result of the accident.

28The three chiropractic treatment plans from MacKenzie Medical all state that the purpose of the treatment in dispute is to increase the applicant’s range of motion and mobility as well as provide pain relief. The applicant has received some improvement with the treatment she received under the MIG. Dr. Goldstein’s opinion was that the applicant had not yet reached maximal medical recovery as of June 2016. I accept the applicant’s submission that the home exercises she had been engaged in (as recommended by Dr. Goldstein) has not resulted in any substantial improvement. She advised some of the assessors that the treatment she has received provides her with some pain relief. Dr. Ogilvie-Harris recommended a multidisciplinary pain management program consisting of physical rehabilitation of the spine and extremities, appropriate psychological and emotional support and pain management. For these reasons, I find that physiotherapy, chiropractic, and massage therapy services are necessary. However, I need to determine whether the recommendations for chiropractic and massage therapy set out in the treatment plans from MacKenzie Medical are reasonable or whether they are a duplication of treatment already received or treatment recommended in Dr. Kachooie’s treatment plan for a chronic pain program.

29Under s. 38(5) of the Schedule, insurers are entitled to refuse treatment plans that describe services to be received in respect of a period during which the insured was entitled to receive services under the MIG. Under s. 38(6) of the Schedule, the insurer’s refusal to accept a treatment plan is final and not reviewable. I find that the first treatment plan from MacKenzie Medical, Dr. Wadehra’s treatment plan dated January 18, 2016, recommended chiropractic and massage therapy services during a period of time when the applicant would have been entitled to treatment within the MIG.¹⁸ This means that the respondent’s refusal of the treatment plan is final and not reviewable by me. Even if it was, I would have found that the treatment plan was not reasonable because the evidence points to the respondent already having paid for the recommended treatment during that period of time, except for $152.00. The respondent denied the treatment plan on February 3, 2016 on the basis the applicant had a minor injury but advised the applicant it would cover the cost of $2,200 so that the applicant could start treatment right away. The respondent asked that an OCF-23 treatment confirmation form be submitted if the applicant intended to incur more than $2,200 of treatment. According to the document lists in the IE reports, Dr. Wadehra submitted an OCF-23 dated February 18, 2016. I draw an inference from these facts in addition to the undisputed fact that the insurer has paid out $3,500 of medical benefits under the MIG, that the January 18, 2016 treatment plan is a duplication of services the applicant has already received. Accordingly, it is not a reasonable expense and I deny the applicant’s claim for $3,652.00 in chiropractic and massage therapy services in the treatment plan recommended by Dr. Wadehra.

30Dr. Kachooie recommended 16 sessions of physiotherapy, 8 of massage therapy and 8 acupuncture sessions as part of a chronic pain program in his chronic pain program treatment plan dated June 16, 2016 for $4,306.08. These recommendations are almost a duplication of Dr. Banibashar’s recommendation for 9 sessions each of chiropractic, massage therapy and active treatment by a chiropractor in his treatment plan prepared June 14, 2016. The treatment plans essentially cover the same time period and recommend duplicate (or alternate) types of therapies. Dr. Ogilvie-Harris recommended a multidisciplinary pain management program consisting of physical rehabilitation of the spine and extremities, appropriate psychological and emotional support and pain management. Dr. Kachooie’s treatment plan encompasses Dr. Ogilvie-Harris’ recommendations better than Dr. Banibashar’s treatment plan. Therefore, I find that Dr. Banibashar’s treatment plan dated June 14, 2016 for $2,027.00 is not reasonable. Accordingly, I deny the applicant’s claim for $2,027.00 in chiropractic and massage therapy services in the treatment plan recommended by Dr. Banibashar.

31In his chronic pain program treatment plan dated June 16, 2016 for $4, 306.08, Dr. Kachooie recommended a back brace. No evidence from a health practitioner was provided as to how a back brace would assist the applicant.¹⁹ Dr. Goldstein recommended against a back brace because it would create a dependency and would lead to a weakening of the applicant’s muscles and a deterioration of her condition. Accordingly, I find that the back brace is not necessary.

32In his chronic pain program treatment plan dated June 16, 2016 for $4, 306.08, Dr. Kachooie also recommended that a functional abilities assessment be conducted by a chiropractor. No evidence from a health practitioner was provided to justify the necessity of the expense.²⁰ This portion of the treatment plan is denied. The remainder of the chronic pain program treatment plan correlates to Dr. Ogilvie-Harris’ recommendations and, therefore, I find that it is both reasonable and necessary to address the applicant’s chronic pain syndrome. Accordingly, I find that the applicant is entitled to the treatment plan for a chronic pain program as recommended by Dr. Kachooie with the exception of the back brace and functional abilities assessment.

33Dr. Banibashar recommended $1,418.00 of chiropractic and massage therapy in his treatment plan submitted July 26, 2016. It recommends treatment following the period covered by Dr. Kachooie’s treatment plan. Therefore, I find the treatment plan is reasonable and necessary to address the applicant’s chronic pain syndrome.

C. Entitlement to the Cost of Examinations

34The test for entitlement to payment for the cost of an assessment is whether, on a balance of probabilities, it is reasonable and necessary. The term “reasonable” refers to the cost of the assessment.

(i) Psychological Assessment

35The applicant is claiming entitlement to the cost of a psychological assessment in the amount of $2,258.88 recommended by Dr. Kershner in a treatment plan submitted May 17, 2016. I find the cost of the assessment is reasonable and necessary for the following reasons. Both Dr. Zakzanis and Dr. Kershner determined that the applicant has a psychological impairment. Dr. Zakzanis did not think a psychological assessment was reasonable because the applicant did not have a psychological disability, her psychological impairment was improving, and she was not interested in psychological treatment. However, she expressed an interest in psychotherapy to Dr. Kershner’s psychotherapist, Yana Shcherbins.

36Dr. Zakzanis’ comment about the applicant not having a psychological disability does not address the type of psychological treatment she would receive as part of a chronic pain program. Both Dr. Kershner and Dr. Ogilvie-Harris have recommended psychological treatment. The applicant may decide otherwise. At least, with the psychological assessment being conducted, the applicant will have a better understanding of how the accident has affected her and what treatment is necessary to address that. In the interim, she has an obligation to undergo recommended treatment, which may also affect her decision to undergo treatment.²¹ The assessment has identified the treatment recommended, which means the applicant is able to understand what is required of her to fulfill her obligation to undergo treatment. For these reasons, I find a psychological assessment was necessary.

37Having determined that Dr. Kershner’s psychological assessment was necessary, I must determine whether the recommended fees in the treatment plan are reasonable. The psychological treatment plan does not provide a breakdown of the hours or time required for the assessment that would allow me to determine whether the hourly fee comes within the Professional Services Guideline.²² However, it does provide a breakdown of sorts and is within the $2,200 limit for assessments under s. 25 of the Schedule, except for a $60 transportation fee. I find the transportation fee is reasonable given that the applicant was only in the process of learning how to drive at the time of the accident. She has been unable to return to driving a vehicle since the accident due to fear. Accordingly, I find that the applicant is entitled to payment of $2,258.88 for the cost of Dr. Kershner’s psychological assessment inclusive of her transportation to and from the assessment.

(ii) Orthopaedic Assessment

38The applicant seeks the cost of an orthopaedic assessment in the amount of $2,200.00 for an orthopaedic assessment recommended and conducted by Dr. Ogilvie-Harris. I find the assessment was necessary to determine why the applicant continued to have complaints of neck, back and shoulder pain more than a year after the accident despite undergoing treatment in the MIG and doing a home exercise routine. Dr. Ogilvie-Harris was able to address the neurological findings of Dr. Kachooie that arose since the applicant was seen by the respondent’s IE assessors. I also find that Dr. Ogilvie-Harris’ assessment was necessary for addressing the chronic pain treatment plan recommended by Dr. Kachooie.

39Dr. Ogilvie-Harris’ treatment plan recommends a fee of $2,670.00. According to the case conference order, the applicant is only claiming $2,200.00 for the cost of the assessment. I find that this amount claimed by the applicant is reasonable. There are no set fees for physicians in the Professional Fee Guidelines. It is not unusual for physicians to charge more than $400 per hour. The cost claimed for Dr. Ogilvie-Harris’ assessment is within the $2,200.00 limit allowed under s. 25 of the Schedule and, therefore, is reasonable. For these reasons, the applicant is entitled to payment of $2,200.00 for the cost of Dr. Ogilvie-Harris’ orthopaedic assessment.

D. Entitlement to IRBs

40Under s. 5 of the Schedule, the respondent is required to pay IRBs to the applicant if, as a result of and within 104 weeks after the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment (“pre-104 week IRBs”). The test for entitlement to IRBs changes to a stricter test after the first 104 weeks of disability (“post-104 week IRBs”). I must determine whether the applicant has proven on a balance of probabilities that she is entitled to both pre-104 week IRBs and post-104 week IRBs.

(i) Pre-104 Week IRBs

41The applicant must prove she had a substantial inability to engage in the essential tasks of her pre-accident occupation on a balance of probabilities. It is not merely the fact of being able to perform a job task that matters in the IRB test. A worker must also be able to perform the tasks for the period of time required by their position.

42Based on the documentary evidence filed, I find that the essential tasks of the applicant’s employment as an ironing press machine operator in a linen factory are as follows:

a. Standing most of the day beside an ironing press: 8 hours daily in the winter and 10 to 12 hours daily for 5 days a week otherwise;

b. Ironing clothes and linens and preparing them for shipment;

c. washing linen at times; and

d. lifting, carrying, pushing and pulling.²³

43Dr. Chacko made a note that the applicant’s work was “heavy.” He did not explain what weight he qualified as “heavy.”²⁴ I accept that the applicant’s work is classified as “heavy“ because there is no evidence to refute or question Dr. Chacko’s classification.

44I find from the fact that the respondent initially paid the applicant an IRB, that there is no dispute that the applicant suffered an impairment from the accident and suffered a substantial inability to perform the essential tasks of her pre-accident employment within 104 weeks of the accident. The dispute between the parties is whether, from June 29, 2016, the date the respondent terminated the payment of IRBs, to December 19, 2017, the applicant continued to suffer a substantial inability to perform the essential tasks of a linen press operator.

45I find that the applicant’s psychological impairments have not and do not prevent her from engaging in the essential tasks of her pre-accident occupation or any occupation. My finding is based on the applicant’s reports that she has no cognitive complaint and her psychological problems do not interfere with her ability to work. Both Dr. Kershner and Dr. Zakzanis observed that the applicant has no cognitive impairments.

46The applicant relies on the opinions expressed in the disability certificates of Dr. Kachooie dated June 16, 2016 and her family doctor, Dr. Chacko, dated July 29, 2017 and July 26, 2018 to argue that she meets the pre-104 week test for IRBs. Dr. Chacko stated that the applicant has severe back and neck pain. Having pain does not mean a person is entitled to IRBs. The pain must be functionally disabling such that the person is substantially unable to engage in her essential tasks. According to Dr. Chacko’s clinical notes, the applicant’s standing tolerance as of July 2017 was for 30 minutes, yet the applicant was required to stand for most of her work day.

47The applicant also relies on Dr. Ogilvie-Harris’, Dr. Goldstein’s and Dr. Corrin’s findings that the applicant had some limitations to the range of motion of her neck and back. Dr. Goldstein also found limited ranges of motion to the applicant’s right shoulder and left knee.²⁵ On a questionnaire given by Dr. Ogilvie-Harris, the applicant’s score indicated moderate pain-related functional limitations with respect to mobility. His opinion was that the applicant did not have the endurance or the physical capability of doing a job that requires repetitive movements of the spine and extremities because of her pain.

48Despite his findings, Dr. Goldstein’s opinion was that the applicant did not meet the test for IRBs. He found that the applicant’s pain complaints were more severe than one would expect for the soft tissue injuries she sustained. He provided no reason to doubt the severity of the applicant’s complaints. Nor did Dr. Goldstein provide any analysis or reason for his position that the applicant was able to do substantially all of the essential tasks of her occupation in spite of her impairments. Therefore, I give more weight to Dr. Ogilvie-Harris’ opinion where his opinion differs from Dr. Goldstein’s. For these reasons, I accept Dr. Ogilvie-Harris’ opinion and find that the applicant has proven on a balance of probabilities that her chronic pain syndrome continued to prevent her from engaging in the essential tasks of her occupation as an ironing press machine operator in a linen factory after June 29, 2016.

49Accordingly, I find that the applicant is entitled to receive a pre-104 week IRB in the amount of $251.15 per week for the period from June 29, 2016 to December 19, 2017.

(ii) Post-104 Week IRBs

50In order for me to find that the applicant is entitled to IRBs from December 19, 2017 to date or after the 104 week period, the applicant must prove on a balance of probabilities that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.²⁶ This involves consideration of all the evidence including the nature of the applicant's condition and extent of her disability, her efforts to position herself to return to the workforce, the vocational assistance made available by the respondent, and the options for alternative work that have been put forward. It is not enough for the applicant to submit that because she cannot engage in her pre-accident occupation that she cannot engage in any occupation. She must present some evidence of what type of employment is suitable and why she cannot engage in that employment − either by showing that she has tried to work at the suitable employment and has been unable to or that her functional impairments prevent her from even trying.

51I find that the applicant has not satisfied her onus of proof. She has not presented any alternative form of employment that may be suitable based on her experience, training or education. The applicant’s first language is Tamil and she speaks some English. She completed grade 12 and part of a teaching diploma program in Sri Lanka. She described herself as an above average student. She has worked for the same employer since 2006 with time off for maternity leave and from 2010 to 2014 to care for her mildly autistic son.

52Dr. Ogilvie-Harris stated that the applicant’s ability to return to the labour market as of January 2017 was guarded. The applicant submits that comment, together with Dr. Ogilvie-Harris’ opinion that she did not, in January 2017, have the physical capability or endurance of returning to the labour market is evidence that she has a complete inability to engage in any occupation. I do not agree. Dr. Ogilvie-Harris’ recommendation that the applicant undergo a vocational assessment and a follow up evaluation to determine her ultimate outcome implies that there may be some occupation of a light or sedentary classification that is suitable for the applicant and that takes into account her impairments. Without any evidence from the applicant identifying what a suitable occupation might be, or evidence that the applicant has tried to engage in a light or sedentary occupation that takes into account her grade 12 education and her courses towards a teaching diploma, I am unable to find that applicant has satisfied her onus. For these reasons, I am not satisfied that the applicant has proven, on a balance of probabilities, that she has a complete inability to engage in any occupation for which she is reasonably suited by education, training or experience. Accordingly, I find that the applicant is not entitled to receive a post-104 week IRB from December 19, 2017 onwards.

E. Award Under O. Reg. 664

53The applicant claims entitlement to an award under s. 10 of O. Reg. 664 (“special award”), which states that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the accident benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award. Both parties agree that the requirements of good faith discussed in the Financial Services Commission of Ontario (“FSCO”) decision Beltrame and Dominion of Canada General Insurance ("Beltrame")²⁷, apply for determining what is an unreasonable delay or withholding. That decision held that the insurer’s obligation includes carrying out a proper investigation of a claim, to carefully consider all of the available information, and give appropriate weight to that information in a fair and even-handed manner. I am not bound by the FSCO decisions but agree that these are some of an insurer’s obligations to its insured.

54The applicant relies on Beltrame as support that an insurer is also required to identify information needed which would assist in assessing the claim. In that case, the Arbitrator determined that the respondent had an obligation to schedule a neuropsychological IE. I am not in agreement with those comments from Beltrame because they put the onus of proof on the respondent and ignore the applicant’s obligation to provide relevant medical information to IE assessors under s. 44(9)2(ii) of the Schedule. It is trite law that the insured person has the onus of proof to show entitlement to accident benefits on a balance of probabilities.

55The applicant submits that the respondent’s MIG determination, which led to a denial of all the treatment plans, was based on outdated assessment reports in which opinions were formulated in the absence of relevant medical documentation. The applicant submits that the respondent failed to provide its IE assessors with Dr. Chacko’s clinical notes up to June 19, 2018, the diagnostic imaging revealing bicipital tenosynovitis and disc bulging, Dr. Kachooie's report indicating abnormal EMG findings and disc herniation, the consultation reports of Dr. Ogilvie-Harris and Dr. Kershner, the clinical notes and records of Mackenzie Medical, and the prescription summary. The applicant submits that failure resulted in the respondent relying on outdated opinions that, in turn, resulted in an unreasonable withholding of benefits.

56I agree with the applicant that insurers have an ongoing obligation to reassess an insured person’s entitlement to benefits once new information is provided to the insurer. However, there is no evidence before me of when the medical information was provided to the respondent. The IE assessors had some of Dr. Chacko’s clinical notes and records. The case conference Adjudicator’s order stated the applicant was to provide Dr. Chacko’s updated records to the respondent by July 31, 2018. This implies that as of the date of the case conference on June 12, 2018, the respondent did not have Dr. Chacko’s updated records. Given this implication, it was incumbent upon the applicant to submit evidence showing when the respondent had the relevant medical documentation. It was reasonable for the respondent to continue to rely on its IE assessors’ reports until new medical documentation was provided to the respondent. Because I do not have any evidence as to when that was, I do not find the applicant has shown that there was an unreasonable withholding or delay in the payment of benefits. The applicant’s claim for a special award is dismissed.

V. CONCLUSION

57For the reasons outlined above, I find that:

i. The applicant sustained injuries as a result of the accident that take her out of the MIG;

ii. The applicant’s claim for a medical benefit for chiropractic and massage therapy services of $3,652.00 recommended by Dr. Wadehra in a treatment plan submitted January 18, 2016, is dismissed;

iii. The applicant’s claim for a medical benefit for chiropractic and massage therapy services of $2,027.00 recommended by Dr. Banibashar in a treatment plan submitted June 14, 2016 is dismissed;

iv. The applicant is entitled to receive a medical benefit for chiropractic and massage therapy services in the amount of $1,418.00 recommended by Dr. Banibashar of MacKenzie Medical in a treatment plan submitted July 26, 2016;

v. The applicant is entitled to receive a medical benefit in the amount of $4,306.08 (minus the cost of a back brace and a functional ability assessment), for a chronic pain program recommended by Dr. Kachooie in a treatment plan dated June 16, 2016;

vi. The applicant is entitled to payment for the cost of examinations in the amount of $2,258.88 for a psychological assessment recommended by Dr. Kershner in a treatment plan submitted May 17, 2016;

vii. The applicant is entitled to payment for the cost of examinations in the amount of $2,200.00 for an orthopaedic assessment recommended by Dr. Ogilvie-Harris in a treatment plan submitted August 5, 2016;

viii. The applicant is entitled to an IRB in the amount of $251.15 per week for the period from June 29, 2016 to December 19, 2017;

ix. The applicant’s claim for post-104 week IRBs from December 19, 2017 onwards is dismissed;

x. The applicant’s claim for a special award is dismissed; and

xi. The applicant is entitled to interest on any overdue payment of benefits in accordance with the Schedule.

58If the parties are unable to agree on the amount of interest within 30 days of the day of the release of my decision, they may serve and file written submissions and evidence on the issue according to the following timeline:

Applicant’s submissions due: 37 days from the release of my decision

Respondent’s submissions due: 42 days from the release of my decision

Applicant’s reply submissions if any: 49 days from the release of my decision

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3The case conference Adjudicator’s order refers to treatment being recommended by medical centres rather than the health practitioner who actually signed the treatment plans in dispute. I have identified the health practitioners who prepared the treatment plans and recommended the services in dispute as insurers are liable for payment of treatment plans only prepared by regulated health practitioners under s.38(3)(b) of the Schedule. The definition of “health practitioner” in s. 3(1) of the Schedule does not include medical centres or corporations.
4. 4The case conference Adjudicator’s order states that the treatment plans in issue are for physiotherapy. However, the treatment plans in the applicant’s brief that correspond to the dates and amounts listed in the case conference Adjudicator’s order are for chiropractic and massage therapy services with the chiropractor providing a physical therapy component of treatment.
5. 5The case conference order is silent on what medical services were recommended in this treatment plan. The case conference order states the treatment plan was submitted on June 6, 2016. The only plan that corresponds to this amount is dated June 16, 2016.
6. 6The case conference Adjudicator’s order states the examination was for a spinal assessment. The applicant, however, submits it was for a psychological assessment.
7. 7The order states that another issue in dispute is a claim for psychological treatment in the amount of $4,072.14 recommended in a treatment plan submitted on June 17, 2016. The applicant advised in her submissions that this claim is withdrawn.
8. 8Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24
9. 9Applicant’s brief, Tab 17, IE report of Dr. Zakzanis dated June 15, 2016
10. 10Applicant’s brief, Tab 18, report of Dr. Kershner dated June 18, 2016
11. 11Applicant’s brief, Tab 19, report of Dr. Ogilvie Harris dated January 14, 2017
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24
13. 1317-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) (“17-007825 v. Aviva”)
14. 14Abyan v. Sovereign General Insurance Company (FSCO A13-003926, September 14, 2017) (“Abyan v. Sovereign”)
15. 15Applicant’s brief, Tab 23, IE report of Dr. Mark Goldstein, family medicine, dated June 15, 2016
16. 16Applicant’s brief, Tab 28, Treatment plan of Dr. Banibashar dated July 26, 2016
17. 17Dr. Alireza Kachooie, the applicant’s treating physiatrist, reported on June 16, 2016 that the results of EMG studies conducted on the applicant were consistent with chronic denervation S1 radiculopathy. However, I find there was no nerve injury because the respondent’s neurologist, Dr. Lesley Corrin, and Dr. Ogilvie-Harris both agree that the applicant did not sustain a neurological impairment.
18. 18Under s. 8(a) of the MIG, the timing of the treatment phase is 12 weeks following the initial visit. Dr. Wadehra first saw the applicant on January 18, 2016 according to his OCF-3 disability certificate of the same date.
19. 19Violet Andris of the Rehab Centre provided reasons in Dr. Kachooie’s June 16, 2016 treatment plan as to why a lumbosacral belt is commonly prescribed. However, I have no information as to her expertise or medical background or what relation a lumbosacral belt has to the recommended back brace.
20. 20Violet Andris explained it was required to assess the applicant’s activities of daily living and to determine what treatment was required. However, I would expect that the treating chiropractor would be able to determine what treatment the applicant requires by the contact with the applicant through her ongoing treatment, without an assessment.
21. 21Section 57 of the Schedule.
22. 22Professional Services Guideline, Superintendent’s Guideline No. 03/14.
23. 23The applicant made submissions about the weight she was required to handle, but other than Dr. Chacko’s note, did not provide any evidence to support her submissions. Submissions are not evidence and, therefore, I am unable to make any factual findings based on the applicant’s description of her job requirements that are unsupported by any evidence as the essential tasks of her employment as an ironing press machine operator in a linen factory.
24. 24“Heavy” under the Career Handbook 2016, 3rd Ed., Government of Canada National Occupational Classification means work activities involve handling loads more than 20 kg.
25. 25The applicant claims that Dr. Goldstein also reported that the applicant’s standing tolerance was limited to 20 minutes. However, this was not an observation made by Dr. Goldstein, but a recounting of Dr. Chacko’s clinical note from February 1, 2016. The applicant’s standing tolerance during a period of time she was receiving IRBs is not relevant to her entitlement to IRBs after June 1, 2016.
26. 26Section 6(2)(b) of the Schedule.
27. 27(FSCO A12-001522, June 13, 2014)