Z.H. v. Pembridge Insurance Company, 2019 CanLII 101664

Z.H. vs. Pembridge Insurance Company

Citation: Z.H. vs. Pembridge Insurance Company, 2019 ONLAT 18-005296/AABS

Date: September 6, 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:

[Z.H.]

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Fricot

APPEARANCES:

For the Applicant: Samia M. Alam, Counsel

For the Respondent: Lisa Quan, Counsel

Heard in Writing: April 1, 2019

OVERVIEW

1The applicant was a pedestrian when he was injured on May 12, 2016, after being struck by a vehicle while crossing the street (“the accident”). The applicant sought accident benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). An application was made to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”) after his claims for income replacement benefits, a treatment plan for physical therapy and the cost of a physiatry assessment were denied.

2The applicant also seeks to add a claim for entitlement to the cost of a psycho-vocational assessment that was denied but not included as an issue in dispute when this application was filed.

ISSUES IN DISPUTE

3The following issues are in dispute:

(i) Is the applicant entitled to income replacement benefits (“IRBs”) commencing on June 20, 2016 and ongoing, and if so, what is the weekly benefit to which the applicant is entitled?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,728.75 for physical rehabilitation therapy recommended by Alliance Diagnostic and Treatment Inc., in a treatment plan dated November 1, 2018¹, denied by the respondent on November 22, 2018?

(iii) Is the applicant entitled to the cost of an assessment in the amount of $1,990.00 for a physiatry assessment recommended by Alliance Diagnostic and Treatment Inc., in a treatment plan dated November 1, 2018², denied by the respondent on November 22, 2018?

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

(v) Is the respondent liable to pay an award under Ontario Regulation 664 (“O. Reg. 664)³ because it unreasonably withheld or delayed payments to the applicant?

4In addition, the following issue is also in dispute:

(vi) Is the applicant entitled to add, as an issue in dispute in this application, whether he is entitled to the cost of an assessment in the amount of $4,995.00 for a psycho-vocational assessment recommended by Alliance Diagnostics and Treatment Inc., in a treatment plan dated June 4, 2018⁴, denied by the respondent on July 6, 2018?

RESULT

5For the reasons that follow, I find that the applicant is entitled to the cost of a physiatry assessment in the amount of $1,990.00. I find the applicant is not entitled to IRBs or any of the other benefits claimed.

ANALYSIS

Is the applicant entitled to income replacement benefits (IRBs)?

6I find that the applicant is not entitled to IRBs for the period commencing June 20, 2016 for the reasons that follow.

7There is no direct evidence from the applicant. Because of the inconsistencies in the information provided to various health care providers and assessors by the applicant, limited weight has been given to information provided by the applicant, unless the same is corroborated by other evidence.

Entitlement to IRBs during the period from June 20, 2016 to May 12, 2018

8To be entitled to IRBs during this period the applicant must prove, on the balance of probabilities, that he suffers a substantial inability to perform the essential tasks of his pre-accident employment at [a restaurant]⁵. I find that the applicant is not entitled to IRBs during this period as there is insufficient evidence to establish that the applicant could not perform the essential tasks of his job at [a restaurant] during the period from June 20, 2016 to May 12, 2018.

9At the time of the accident the applicant was an 18 year old grade 12 student who worked part-time at [a restaurant]. He worked approximately 13 – 24 hours biweekly.⁶ The Employer’s Confirmation Form⁷ states that the applicant’s job title was “sandwich maker” and that his duties included: standing for a long time on his feet and lifting his hands to reach products from the bun warmer. The applicant advised assessors that his job duties required mental alertness as well as the physical ability to stand, lift, bend, carry, walk and reach⁸; and that he worked at the drive through window, operated the grill, made sandwiches and managed the cash.⁹

10As a result of the accident the applicant sustained strains of his neck, back, left shoulder and right wrist; small lacerations to his forehead and left ear; a concussion; and psychological injuries.

11The applicant returned to school about three weeks after the accident. After graduating from high school in June 2016, the applicant took a year off before going to college because of family and financial issues.¹⁰ He obtained his G2 driver’s licence after the accident.¹¹ The applicant returned to work at [a restaurant] in late June 2016. He advised various assessors that he worked at [a restaurant] for only two to four weeks¹²; that he worked for a month¹³, and that he had worked there until about September 2016.¹⁴ The most reliable evidence regarding the applicant’s work at [a restaurant] after the accident is the Record of Employment issued October 13, 2016, which indicates that he worked there until October 9, 2016, and that he worked between 29.75 – 67 hours biweekly after the accident – more than twice the number of hours he had worked before the accident.

12There is no evidence that the applicant sought or required modified duties or accommodation when he returned to work at [a restaurant]. There is no evidence that the applicant reported any concerns regarding accident-related injuries during his visits to his family doctor in August, September and November 2016. The clinical notes and records (“CNRs”) of his November 3, 2016 annual health examination indicate “Patient main concerns are none”.¹⁵

13The applicant consistently reported to assessors that he took only Tylenol and Advil for pain following the accident. Other than on one occasion in June 2017, there is no evidence that the applicant ever filled any prescriptions for pain medication after the accident¹⁶. In November 2016 the applicant was assessed by a neurologist¹⁷ whose diagnoses included concussion and posttraumatic migraine with migrainous vertigo. The neurologist recommended medication for acute attacks and also recommended that the applicant take amitriptyline prophylactically. There is no evidence of the applicant ever having filled prescriptions for the recommended medications.

14In late September or early October 2016, the applicant left his part-time job at [a restaurant]. He advised one assessor that he quit working at [a restaurant] as he got a new job¹⁸, and told another that he voluntarily resigned from [a restaurant] as he wanted a higher paying job.¹⁹ He advised other assessors²⁰ that he quit working at [a restaurant] because he could not carry out his job duties due to pain. In October 2016 the applicant began working at a warehouse job at [a company], where he worked nine to ten hours a day.²¹ He described his duties at the [company] warehouse as requiring him to stand nine to ten hours a day, bend to retrieve items, and reach to shelve items on shelving located between knee height and about head level.²² He estimated that he was required to lift up to 20-50 pounds.²³

15Only very limited documentation was provided with respect to the applicant’s employment at [a restaurant] and [a company]. It is noted that despite having been requested to provide his complete employment files from [a restaurant] and other employers²⁴, those files were not produced or filed as evidence. The applicant’s failure to do so, his failure to provide an explanation for the absence of the same, and his failure to present other evidence regarding the difficulties he submits he had following his return to work at [a restaurant] and at [a company] is problematic in a case such as this where IRBs are claimed. Other than the applicant’s self-reporting to assessors, there is no other evidence to substantiate his assertion that he could not carry out his duties at [a restaurant] due to pain. The fact that the applicant’s hours of work at [a restaurant] more than doubled following the accident is inconsistent with the applicant being unable to perform his job duties due to accident related injuries and pain. Switching to a more physically demanding warehouse job with significantly more hours of work per week in October 2016 is also inconsistent with the applicant having been unable to continue his job at [a restaurant], a job that is classified as “light”²⁵ or “light to medium work”²⁶. This evidence, and the absence of any record of complaints about his accident related injuries to his family doctor between August 2016 and February 2017, supports a finding that the applicant voluntarily left that job at Wendy’s in October 2016 to get a higher paying job.

16Although the applicant consistently advised assessors that he stopped working at [a company] after only two to three weeks because the job was too physically demanding and caused him pain as a result of accident related injuries²⁷, there is no other evidence that the applicant left the [company] warehouse job for that reason. A letter from a placement agency²⁸ indicates that the applicant was “on a temporary assignment”. Whether the applicant left his job at [a company] because his temporary position had ended or because he found that the job caused him too much pain is, however, not determinative of the applicant’s entitlement to IRB’s from June 20, 2016 to May 12, 2018. What is determinative of that issue is the absence of convincing evidence that the applicant left his pre-accident job at [a restaurant] due to pain or an inability to perform his job duties.

17There is no evidence of the applicant having worked after leaving his job at [a company] in October 2016 and prior to starting college in September 2017. The applicant advised in November 2016, however, that he was looking for employment, preferably in retail, and that he had applied at several places.²⁹

18Many of the reports relied upon by the applicant have been given limited weight as the conclusions reached therein are based in part on misinformation regarding the applicant’s ability to return to and continue in his pre-accident job or are inconsistent with other more credible evidence.

19I have given little weight to the In-Home Assessment Report³⁰ that is based on an assessment completed on October 21, 2016 and concludes that the applicant required 10 hours of housekeeping and home maintenance assistance. This conclusion is inconsistent with what the applicant advised during an OT In-Home Assessment conducted on November 14, 2016, namely that he was able to complete all household tasks other than cleaning the bathroom.³¹ It is also inconsistent with the fact that the applicant was able to return to work at [a restaurant] in late June 2016 and continued working a significantly increased number of hours per week until he left that position in October 2016.

20The physiatrist who examined the applicant on December 19, 2016³² and the chronic pain specialist who examined the applicant on January 24, 2017³³ concluded that the applicant was not able to return to gainful employment. Those opinions have been given little weight as they are based in part on erroneous self-reporting by the applicant. For example, the applicant advised both assessors that he could not carry out his duties at [a restaurant] following the accident because of aggravation of his symptoms and pain flare-ups. As noted above, the evidence does not support that assertion.

21A report prepared following a Functional Abilities Evaluation (“FAE”) conducted on March 23, 2017³⁴ concludes that at that time, as a result of his accident injuries, the applicant was substantially unable to perform the essential tasks of his pre-accident employment, for which the physical demands strength rating was found to be “light”. That conclusion has been given little weight for the following reasons. It is contrary to both the applicant’s demonstrated ability from July to September 2016 to return to his job at [a restaurant] following the accident, and an April 10, 2017 FAE³⁵ that concludes that the applicant was capable of performing light to medium work. During that FAE the applicant advised that he had started playing basketball again, although not at the same level as prior to the accident. The applicant also advised another assessor on April 3, 2017 that he had just started working out again.³⁶

22The applicant also relies upon a Psycho-vocational Assessment Report dated December 18, 2018. For the reasons discussed below, I have given the conclusions reached in that report little weight.

23I find the reports and evidence relied upon by the respondent more persuasive as the conclusions reached therein are consistent with the facts established by documentary and other evidence.

24In May 2017 the applicant underwent multidisciplinary IE assessments. All assessors concluded that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. The orthopaedic assessor³⁷ concluded that the applicant had sustained uncomplicated soft tissue injuries. Despite noting the applicant’s continuing complaints of pain, the assessor concluded that the applicant did not have a significant functional orthopaedic impairment, that he had the functional orthopaedic capacity to engage in any employment on a full-time basis, and that no further musculoskeletal assessments or examinations or facility-based treatment was required. The assessor noted that “prognosis is guarded for a subjective recovery as there was evidence of symptom magnification” during the examination. The neurological assessor³⁸ noted that the applicant reported symptoms of ongoing headaches following the accident for which he was taking Tylenol and Advil. The assessor diagnosed the applicant with low-grade persistent headache secondary to mild traumatic brain injury (concussion). He noted that the applicant’s headaches had shown improvement in severity, duration and frequency, without the use of prophylactic medication. He also noted that the applicant may benefit from a trial of amitriptyline, as had been recommended by another neurologist in November 2016.³⁹ The assessor concluded that from a neurological perspective the applicant did not suffer from a substantial inability to perform the essential tasks of his employment.

25A May 2017 IE psychological assessor⁴⁰ diagnosed the applicant as suffering from adjustment disorder with mixed anxiety and depressed mood. The applicant had received psychological services prior to that assessment. The assessor’s opinion was that the applicant would likely benefit from an additional ten biweekly cognitive behavioural therapy sessions with the implementation of mindfulness-based pain and stress reduction strategies. The assessor noted that the applicant had reported that his barriers to employment were physical injury and pain, and that from a psychological perspective he did not suffer from a substantial inability to perform the essential tasks of his employment.

26Other that the ROE from [a restaurant], the letter from the placement agency regarding the applicant’s work at the [company] warehouse, and some income tax documents for 2016 and 2017, no documentation detailing any other post-accident employment was filed. During an April 5, 2018 IE orthopaedic assessment⁴¹, however, the applicant advised that in May 2017 he had taken a job with an agency doing warehouse work and that he had done occasional jobs in the summer of 2017, but never for more than several days at a time. The applicant’s 2017 Notice of Assessment confirms that he earned $2,849.00 in 2017.⁴² The applicant’s Written Submissions stated that “In 2017, he earned $2,849.00 at Dorel”⁴³, but there is no other evidence regarding the nature or duration of the applicant’s employment in May 2017 or in the summer of 2017.

27It is significant that the applicant made no mention of having worked in May 2017 or in the summer of 2017:

a. to his family doctor, whose CNRs dated March 30, June 27, September 23, and November 9, 2017⁴⁴ all state “Pt still not able to work”;

b. during an IE psychiatry assessment on June 17, 2017;

c. during an IE psychological assessment on April 9, 2018, at which time the applicant advised that he had been unemployed since November 2016; and

d. during a psycho-vocational evaluation⁴⁵ conducted in September and November 2018, when only his work at [a restaurant] and [a company] was disclosed.

28The applicant’s failure to disclose his employment in May 2017 and in the summer of 2017 to his family doctor undermines the credibility of the June 29, 2018 Disability Certificate⁴⁶ completed by him that states that the applicant is substantially unable to perform the essential tasks of his pre-accident employment. The applicant’s failure to disclose this information to the psycho-vocational assessors undermines the credibility of the conclusions reached by them as well.

29The fact that the applicant worked in May 2017 is consistent with the May 5, 2017 conclusions of the IE assessors who all concluded that he had the ability to return to work. It is also consistent with the applicant having advised on June 16, 2017, during an IE psychiatry assessment⁴⁷, that he would be looking for work over the summer, and that he hoped to find a job that was not labour intensive. The applicant had also indicated during that assessment that he was feeling “way better”, despite also referring to ongoing pain.

30Based on the CNRs of the applicant’s family that were filed as evidence, it appears that although the applicant made no complaints to his family doctor regarding accident related injuries between August 2016 and February 2017, he began to complain of low back pain in March 2017. The November 3, 2017 CNR of the family doctor⁴⁸ indicates that the applicant’s main concern at that time was his lower back. An MRI for his lower back was referenced in that CNR and was completed in January 2018.

31In April 2018 further IEs⁴⁹ and reviews of additional documentation by other IE assessors⁵⁰ were undertaken. The IE orthopaedic assessor reviewed the findings of the January 2018 MRI⁵¹ which notes that at “L5/S1 there is a small noncompressive right paracentral disc herniation.” After examining the applicant, he concluded that the “findings on MRI are not contributory to the motor vehicle accident, in my opinion. There are no objective findings of organic orthopaedic pathology on today’s assessment which would correlate with his subjective complaints”.⁵² All IE assessors maintained their original opinions that the applicant did not suffer from a substantial inability to perform the essential tasks of his employment.

32The cases relied upon by the applicant in support of his entitlement to IRBs are factually distinguishable from the facts in this case and are of little assistance in deciding whether the applicant is entitled to IRBs.

33I must decide whether the applicant is entitled to IRBs based on the evidence before me. I find that although there is evidence that the applicant continued to suffer from pain and psychological injuries, the evidence falls short of establishing on a balance of probabilities that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment from June 20, 2016 to May 12, 2018.

Entitlement to IRBs on and after May 12, 2018 (post-104 week period)

34To be entitled to IRBs during this period the applicant must prove, on the balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience⁵³. For the reasons that follow, the applicant has not established that he is entitled to IRBs on and after May 12, 2018.

35The applicant relies on a November 2018 physiatry assessment⁵⁴, which the applicant submits was completed in the post-104 week period. Although the report is dated November 7, 2018, that report is based on a December 19, 2016 assessment and sheds no light on the applicant’s condition on and after May 12, 2018.

36The applicant relies on a Psycho-Vocational Evaluation Report⁵⁵ conducted in late 2018 in support of his claim for IRBs. That report states that the vocational assessment confirmed that from a functional perspective the applicant is precluded from all of his pre-accident jobs, that the applicant does not have the capacity to sustain full or part-time work in any “otherwise suited occupation”, and that he presents as being disabled from performing any full-time position or occupation that he may [be] otherwise be suited by education, experience and training. That report also concludes that from a psychological perspective it is unlikely that he would be able to do any type of work.

37I have given the opinions expressed in the Psycho-Vocational Evaluation Report limited weight, as much of the information on which those opinions are based is inconsistent with other more credible and contemporaneous evidence. For example, the report notes that the applicant advised that he attempted to return to work immediately after the accident, but that he did not receive any accommodation from his employer and he was unable to remain longer than a few weeks due to the pain in his back and shoulders. As noted above, the evidence establishes that the applicant returned to work approximately one month after the accident and continued to work at his pre-accident job for approximately three months, working more hours per week than he had prior to the accident, before he quit and started another job. There is no evidence that the applicant required or sought accommodation while working at [the restaurant].

38The Psycho-Vocational Evaluation Report also notes that when asked about problems with memory and concentration, the applicant indicated that he experiences “slight” problems with memory and that he described the problems with concentration as “wandering off, getting easily side tracked, feeling unfocused and unable to focus for long”, and that he indicated that he notices these problems when he is reading/studying and on a continuous basis when he is at school. The report states that but for the accident the applicant would have graduated from College, and that “cognitive, psychological and physical accident sequelae have prevented him from being able to re-enter employment or attend College courses”. That information reported by the applicant and the conclusions reached in the report are inconsistent with other evidence, specifically with the evidence of the applicant having: confirmed intact concentration and focus when driving at an IE occupational therapy assessment on November 14, 2016⁵⁶; denied having any disturbance with concentration during an IE psychological assessment in May 2017⁵⁷; and reported that overall his concentration was good, and having noted that he experienced only occasional difficulties with his concentration (and not having reported any difficulties with school) during an IE psychological assessment on April 9, 2018⁵⁸. It is also noted that there is no record in the CNRs of the applicant’s family doctor of any complaints relating to concentration following the accident. The conclusion that “accident sequelae have prevented him from being able to re-enter employment or attend College courses” is also inconsistent with the evidence that confirms that the applicant returned to work at Wendy’s, and that after taking a year off school for family and financial reasons he began a Business Administration program at [a] College in September 2017. His October 1, 2018 transcript⁵⁹ indicates that he was enrolled in the 2017 fall and 2018 winter semesters, that he successfully completed 11 of his 12 courses and that he was enrolled in 6 more courses in the fall of 2018. No further academic records were provided. There is no evidence that he required accommodation at College, nor is there evidence that the applicant stopped attending College, or if he did that it was due to accident related injuries.

39The applicant also relies upon the Disability Certificate dated June 9, 2018⁶⁰, completed by his family doctor, in which he states that the applicant is substantially unable to perform the essential tasks of his pre-accident employment. The applicant’s failure to disclose his employment in May 2017 and in the summer of 2017 to his family doctor undermines the credibility of this statement as his family doctor appears not to have been aware that the applicant had in fact returned to some employment in 2017. In any event, this Disability Certificate does not address the issue of whether the applicant suffers a complete inability to engage in any employment for which he is reasonably suited.

40The applicant has not provided any CNRs, other medical documentation, or an OHIP summary for the post-104 week period, nor has the applicant provided objective evidence of his medical condition and whether it improved or deteriorated in the post-104 week period. The applicant has not led evidence of any job-search efforts or objective evidence to support his claim that he suffers from ongoing accident-related impairments that cause him to be completely unable to engage in any employment for which he is reasonably suited.

41I find that the evidence in this case does not establish that the applicant suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience and I dismiss the applicant’s claim for IRBs on and after May 12, 2018.

Is the applicant entitled to the medical benefits and costs of assessment sought?

42Sections 14, 15 and 16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.

43The onus is on the applicant to prove, on a balance of probabilities, that the medical and rehabilitation benefits and the assessments sought are reasonable and necessary as a result of the injuries sustained in the accident.

November 1, 2018 treatment plan for physical rehabilitation therapy

44For the reasons that follow, I find that the evidence does not establish that the physical rehabilitation therapy recommended in the treatment plan dated November 1, 2018 is reasonable and necessary.

45The applicant was diagnosed in November 2016 as suffering from myofascial strain of the cervical and lumbosacral spine, and left shoulder strain with possible acromioclavicular joint derangement⁶¹. Subsequently an ultrasound of his shoulder was done and was found to be normal.⁶² Based on assessments on March 29, 2017 and April 5, 2018, an IE orthopaedic assessor concluded that the applicant had sustained uncomplicated soft tissue injuries, namely musculoligamentous strains to the paracervical and paralumbar structures, as well as left shoulder and right wrist strains.

46The applicant relies upon the recommendations for physical therapy contained in a November 26, 2016 Report from an orthopaedic surgeon⁶³; a November 7, 2018 Physiatry Report (that was based on his assessment of the applicant on December 19, 2016); a January 24, 2017 chronic pain report⁶⁴; a March 30, 2017 FAE Report⁶⁵; and on excerpts from the clinical notes and records of the applicant’s family doctor from March 30, 2017 to November 9, 2017⁶⁶. All of these reports and records are based on assessments that occurred more than a year (some almost two years) before the November 1, 2018 treatment plan.

47The applicant also relies upon the Psycho-Vocational Evaluation Report dated December 18, 2018⁶⁷ in support of the reasonableness and necessity of this treatment plan. For the reasons set out above, I have given the information referred to and the opinions expressed in the Psycho-Vocational Evaluation Report limited weight.

48Although the applicant referred to and relied upon the CNRs of his family doctor for the period between March 30, 2017 to November 9, 2017, more recent CNRs were not filed and there is no evidence of continuing complaints to his family doctor regarding physical injuries sustained in the accident after November 2017.

49The treatment plan dated November 1, 2018 does not identify the applicant’s then current symptoms or any specific limitations that the recommended therapy would address. Under the “Activity Limitations” section, the treatment plan makes the following general comments: “the patient’s injuries impede their capacity to perform their pre-accident activities of daily living. In particular, they would have difficulty with activities which are sustained or prolonged, repetitive or which require bending, lifting, carrying or greater physical exertion”. The evidence establishes, however, that by the summer of 2016, the applicant’s accident related injuries had resolved to the point where the applicant returned to work at his pre-accident job and that by November 2016, he was able to complete all household tasks other than cleaning the bathroom.⁶⁸

50When the applicant was assessed on April 5, 2018, almost two years after the accident, the applicant was continuing to receive therapy once every one to two weeks (passive treatment as well as an active component).⁶⁹ In his May 5, 2017 Report⁷⁰ and in his April 16, 2018 Report⁷¹, the IE orthopaedic assessor notes that the applicant had already received lengthy periods of facility-based treatment and that there was no further indication for facility-based treatment for the soft tissue injuries sustained in the accident.

51There is no evidence regarding the type of physical therapy treatment the applicant received in the two years following the accident, nor is there evidence indicating which treatment had been effective or how the physical therapy treatment being recommended more than two years after the accident would assist the applicant with regards to his accident-related injuries.

52I find that the evidence does not establish, on a balance of probabilities, that the physical rehabilitation therapy recommended in the November 1, 2018 treatment plan is reasonable and necessary.

November 1, 2018 treatment plan for the cost of a physiatry assessment

53I find that the applicant is entitled to the cost of the physiatry assessment recommended in a treatment plan dated November 1, 2018 for the following reasons.

54The respondent submits that the physiatry assessment at issue was completed by Dr. Ghouse, whose Physiatry Report is dated November 7, 2018⁷², but whose assessment occurred in December 2016. The respondent submits that pursuant to s. 38(2) of the Schedule, it is not liable to pay for this assessment as the cost of the physiatry assessment was incurred before the treatment plan was submitted. The applicant, at paragraph 51 of his Submissions, states that the cost of the physiatry assessment sought in the November 1, 2018 treatment plan has not yet been incurred. The applicant makes no submissions in his Reply with regards to the respondent’s submissions on this issue.

55The evidence does not establish that the physiatry assessment recommended in the treatment plan dated November 1, 2018 is the 2016 assessment by Dr. Ghouse, as submitted by the respondent. In the Additional Comments section of the treatment plan recommending the physiatry assessment, it states that during the intake appointment on November 1, 2018, the applicant “reported the persistence of his accident injuries and symptoms especially at his lumbar spine with radicular symptoms down the right leg to the foot. An MRI of the Lumbar Spine dated January 12, 2018 revealed ‘At L5-S1, there is a small noncompressive right paracentral disc herniation’, correlating with his presenting symptomatology”. The treatment plan itself confirms that it is recommending a post January 2018 physiatry assessment, the goal of which is to properly evaluate the current status of the applicant's injuries and impairments.

56The applicant submits that despite the January 2018 MRI finding of a disc herniation, the respondent continues to deny further treatment and assessments pertaining to physical impairments. The applicant further submits that a physiatry assessment is reasonable and necessary to assess, and help make recommendations with respect to improving, the applicant’s functional abilities and range of motion.

57In the respondent’s Explanation of Benefits⁷³ denying the cost of a physiatry assessment, the respondent notes that “1. A recent physiatry assessment was already completed. 2. Medical indication on the file indicates that no further formal physical related treatment is required.” Although no physiatry assessment reports were filed by the respondent, there are reports of Dr. Saplys, who conducted an IE orthopaedic assessment.

58In his April 16, 2018 report⁷⁴, Dr. Saplys notes that the applicant advised that his back pain was worse than it was after the accident. He also notes that the applicant now says that his back pain is worse with sitting rather than standing, whereas on March 29, 2017 the applicant had advised that his back pain was worse on standing rather than sitting. Dr. Saplys refers to the January 12, 2018 MRI Report. He notes that the MRI Report indicates “no significant degenerative changes and no compressive lesion to the canal or foramina. It indicates a small non-compression herniated disc at the L-5, S-1 level”. He further notes that the applicant “had not been referred to a medical musculoskeletal healthcare specialist to date”. He goes on to conclude that in his opinion, the applicant does not require any other assessments from an orthopaedic perspective. He appears to conclude that the herniated disc was not caused by the accident, as he states that the “finding on MRI are not contributory to the motor vehicle accident, in my opinion”. He further concludes that there “were no objective findings of organic orthopaedic pathology on today’s assessment which would correlate with his [the applicant’s] subjective complaints” and that there was evidence of symptom magnification during his physical examination of the applicant.

59Although Dr. Saplys addresses the MRI Report, he does not explain the basis for his conclusion that the herniated disc was not accident-related. Based on the evidence presented, it is not possible to determine the issue of causation. Given the applicant’s continuing complaints of back pain as noted in the treatment plan, together with the findings on the MRI Report, after considering all of the evidence, I find, on a balance of probabilities that the proposed physiatry assessment is reasonable and necessary to determine whether the herniated disc or the applicant’s current back pain is as a result of accident-related injuries.

60I therefore find that the applicant is entitled to the cost of a physiatry assessment in the amount of $1,990.00.

Is the applicant entitled to add, as an issue in dispute in this application, whether he is entitled to the cost of an assessment in the amount of $4,995.00 for a psycho-vocational assessment? If so, is the applicant entitled to the benefit claimed?

61I find that the issue of whether the applicant is entitled to the cost of the psycho-vocational assessment should not be added as an issue in dispute in this proceeding for the following reasons.

62The applicant submits that he requested to add this as an issue by way of correspondence dated “July 18 and December 6, 2018 to which the Respondent consented on December 12, 2018”⁷⁶. There is no evidence that the respondent ever consented to the addition of this issue, as suggested by the applicant. A copy of the applicant’s counsel’s letter dated July 18, 2018⁷⁷ was filed. It is clear from the fax cover page that that letter failed to transmit to the respondent. Although the applicant’s letter requests that the Tribunal confirm that this issue can be added, there is no evidence that that confirmation was ever received.

63The respondent submits that this issue was not raised at the case conference, when the parties discussed and agreed upon the issues that would proceed to hearing. The respondent submits that the applicant did not bring a motion seeking to add this issue, as it did with respect to issues (ii) and (iii). The respondent further submits that it would be procedurally unfair to require the respondent to defend an issue that is raised for the first time at the hearing stage.

64I find that this issue is not properly before the Tribunal. Had the applicant wished to have this issue added, the applicant should have taken steps to do so in advance of the written hearing.

Is the applicant entitled to interest?

65As the only treatment plan to which I have found the applicant is entitled has not been incurred⁷⁸, the applicant is not entitled to interest.

Is the applicant entitled to an award under Ontario Regulation 664?

66The applicant submits that he is entitled to an award under s. 10 of O. Reg. 664, as the applicant submits that the respondent unreasonably withheld or delayed payment of benefits to the applicant, despite the applicant having presented medical evidence supportive of the applicant’s claims. The applicant submits that instead of adjusting the file, the respondent has held steadfast to its denial and has not even conducted a post-104 week IRB assessment.

67The respondent submits that its denials of benefits were based on its medical assessor’s opinions, which opinions were updated when new information was received. The respondent further submits that there is no obligation on an insurer to conduct a post-104 week IRB assessment, particularly in a case such as this where no updated CRNs from the family doctor and no other objective medical information was provided to show a material change in the applicant’s accident-related condition that would warrant a post-104 week IRB assessment. The respondent submits that the only post-104 week assessment that was submitted was the psycho-vocational evaluation dated December 18, 2018.

68As I have found that the applicant has not met the onus of establishing that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience on and after May 12, 2018, the respondent’s failure to conduct post-104 week IRB assessments did not result in an unreasonable withholding or delay of the payment of benefits.

69The only benefit in dispute that I find that the applicant has established on the balance of probabilities that he is entitled to is the cost of a physiatry assessment. As the respondent’s denial of that benefit was based on the conclusions of its IE orthopaedic assessor who reviewed all of the relevant information, I do not find the respondent’s denial of that benefit to have been unreasonable.

70I do not find that the respondent unreasonably withheld or delayed the payment of benefits.

ORDER

71I find that the applicant:

a. is not entitled to IRBs;

b. is entitled to the cost of a physiatry assessment in the amount of $1,990.00;

c. is not entitled to a medical benefit in the amount of $2,728.75 for physical rehabilitation therapy;

d. is not entitled to add, as an issue in dispute in this application, whether he is entitled to the cost of an assessment in the amount of $4,995.00 for a psycho-vocational assessment;

e. is not entitled to interest; and

f. is not entitled to an award under O. Reg. 664.

Released: September 6, 2019

______________________________

Amanda Fricot

Adjudicator

Footnotes

1. 1Applicant’s Documents (“AD”), Tab 41.
2. 2AD, Tab 42.
3. 3Ontario Regulation 664, R.R.O 1990.
4. 4AD, Tab 40.
5. 5Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10, s. 6(1).
6. 6Respondent’s Documents (“RD”), Tab D, Wendy’s ROE, issued June 9, 2016.
7. 7RD, Tab A, OCF-2 dated June 2, 2016.
8. 8AD, Tab 46, Physiatry Report, Dr. Ghouse, dated November 7, 2018; and AD Tab 23, Psycho-Vocational Evaluation Report, Dr. V. Lopo, dated December 18, 2018.
9. 9RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
10. 10AD, Tab 18, Neurologist Report, Dr. Mossanen, dated November 17, 2016.
11. 11RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
12. 12RD, Tab O, Orthopaedic IE Report, Dr. Saplys, dated May 5, 2017
13. 13AD, Tab 45, Chronic Pain Assessment Report, Dr. Karmy, dated February 6, 2017; RD, Tab P, Neurological IE Report, Dr. Desai, dated May 5, 2017.
14. 14RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
15. 15RD, Tab J, CNRs, Dr. Abdel Malek dated August 11, September 22, November 3, 10 and 28, 2016.
16. 16RD, Tab K, Prescription Summary, May 12, 2015 to October 6, 2018.
17. 17AD, Tab 18, Neurological Assessment, Dr. Mossanen, dated November 17, 2016.
18. 18AD, Tab 19, Orthopaedic Report, Dr. Getahun, dated November 26, 2016.
19. 19RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016; and RD Tab M, Functional Abilities Assessment IE Report, N. Edwards, dated May 5, 2017.
20. 20AD, Tab 46, Physiatry Report, Dr. Ghouse, dated November 7, 2018; AD, Tab 45, Chronic Pain Assessment Report, Dr. Karmy, dated February 6, 2017.
21. 21RD Tab M, Functional Abilities Assessment IE Report, N. Edwards, dated May 5, 2017.
22. 22RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
23. 23RD Tab M, Functional Abilities Assessment IE Report, N. Edwards, dated May 5, 2017.
24. 24RD, Tab G, Letter to the applicant, dated September 20, 2018.
25. 25AD Tab 21, FAE Assessment Report, Dr. Csumrik, DC, dated March 30, 2017.
26. 26RD Tab N, IE Physical Demands Analysis, N. Edwards, dated May 5, 2017.
27. 27RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016; AD, Tab 19, Orthopaedic Report, Dr. Getahun, dated November 26, 2016; RD, Tab O, Orthopaedic IE Report, Dr. Saplys, dated May 5, 2017; RD, Tab Q, Psychological IE Report, Dr. McKay, dated May 5, 2017; and AD, Tab 18, Neurologist Report, Dr. Mossanen, dated November 17, 2016.
28. 28RD, Tab I, Letter from Purley HR solutions, dated January 4, 2016.
29. 29RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
30. 30AD, Tab 17, In-Home Assessment, Dr. Csumrik, dated October 27, 2016.
31. 31RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
32. 32AD, Tab 46 Physiatry Assessment Report by Dr. Ghouse dated November 7, 2018.
33. 33AD, Tab 45, Chronic Pain Assessment Report, Dr. Kamry, dated January 24, 2017.
34. 34AD, Tab 21, FAE Report, Dr. Csumrik, DC, dated March 30, 2017.
35. 35RD, Tab M, IE FAE Report, N. Edwards, dated May 5, 2017.
36. 36RD, Tab P, IE Neurological Examination Report, Dr. Desai, dated May 5, 2017.
37. 37RD, Tab O, IE Orthopaedic Examination Report, Dr. Saplys, dated May 5, 2017.
38. 38RD, Tab P, IE Neurological Examination Report, Dr. Desai, dated May 5, 2017.
39. 39AD, Neurologist Report, Dr. Mossanen, dated November 17, 2016.
40. 40RD, Tab Q, IE Psychological Examination Report, Dr. McKay, dated May 5, 2017.
41. 41RD, Tab T, IE Orthopaedic Report, Dr. Saplys, dated April 16, 2018.
42. 42AD, Tab 13, 2017 Notice of Assessment.
43. 43Applicant’s Written Submissions, dated February 28, 2019, at paragraph 10.
44. 44AD, Tab 24, CNRs, Dr. Abdel Malek dated March 30, June 17, July 20, September 23 and November 9, 2017.
45. 45AD, Tab 23, Psycho-Vocational Evaluation Report, V. Lopo, dated December 18, 2018 [V. Lopo (Psychological Assessment) and J. Lepore/D. Taylor (Vocational Assessment)].
46. 46AD, Tab 16, Disability Certificate (OCF-3), Dr. Abdel-Malek, dated June 29, 2018.
47. 47RD, Tab R, IE Psychiatry Examination Report, Dr. Subramanian, dated June 27, 2017.
48. 48AD, Tab 24, CNRs, Dr. Abdel Malek dated March 30, June 17, July 20, September 23 and November 9, 2017.
49. 49RD, Tab S, IE Psychological Report, Dr. McKay, dated April 17, 2018; and Tab T, IE Orthopaedic Report and Addendum Report, Dr. Saplys, dated April 16, 2018 and April 19, 2018.
50. 50RD, Tab U, IE Neurological Addendum Report, Dr. Desai, dated April 19, 2018; IE Psychiatric Addendum Report, Dr. Subramanian, Dated April 19, 2018;
51. 51AD, Tab 22, MRI of Lumbar Spine, dated January 12, 2018.
52. 52RD, Tab T, IE Orthopaedic Report, Dr. Saplys, dated April 16, 2018.
53. 53Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10, s. 6(1), s. 6(2)(b).
54. 54Applicant’s Written Submissions, dated February 28, 2019, at paragraph 32, referring to AD, Tab 46 Physiatry Assessment Report by Dr. Ghouse dated November 7, 2018.
55. 55AD, Tab 23, Psycho-Vocational Evaluation Report, V. Lopo, dated December 18, 2018 [V. Lopo (Psychological Assessment) and J. Lepore/D. Taylor (Vocational Assessment)].
56. 56RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
57. 57RD, Tab Q, IE Psychological Examination Report, Dr. McKay, dated May 5, 2017
58. 58RD, Tab S, IE Psychological Report, Dr. McKay, dated April 17, 2018.
59. 59AD, Tab 9, Transcript of Academic Record, [a] College, issued October 1, 2018.
60. 60AD, Tab 16, Disability Certificate (OCF-3), completed by Dr. Malek, dated June 29, 2018.
61. 61AD, Tab 19, Orthopaedic Report, Dr. Getahun, dated November 26, 2016.
62. 62RD, Tab T, Orthopaedic IE Report, Dr. Saplys, dated April 16, 2018.
63. 63AD, Tab 19, Orthopaedic Report, Dr. Getahun, dated November 26, 2016.
64. 64AD, Tab 45, Chronic Pain Assessment Report, Dr. Kamry, dated January 24, 2017.
65. 65AD, Tab 21, FAE Report, Dr. Csumrik, dated March 30, 2017.
66. 66AD, Tab 24, Excerpts from the Clinical Notes and Records of Dr. Abdel-Malek, dated March 30, 2017 to November 9, 2017.
67. 67AD, Tab 23, Psycho-Vocational Report, Valda Lopo, C. Psych, dated December 18, 2018.
68. 68RD, Tab L, Occupational Therapy In-Home Assessment Report, Nina Munir, dated November 14, 2016.
69. 69RD, Tab T, Orthopaedic IE Report, Dr. Saplys, dated April 16, 2018.
70. 70RD, Tab 0, Orthopaedic IE Report, Dr. Saplys, dated May 5, 2017.
71. 71RD, Tab T, Orthopaedic IE Report, Dr. Saplys, dated April 16, 2018.
72. 72AD, Tab 46, Physiatry Report, Dr. Ghouse, dated November 7, 2018.
73. 73AD, Tab 42, Explanation of Benefits, dated November 22, 2018.
74. 74RD, Tab T, Orthopaedic IE Report, Dr. Saplys, dated April 16, 2018.
75. 76Applicant’s Written Submissions, dated February 28, 2019, at paragraph 2.
76. 77AD, Tab 1, Letter from applicant’s counsel to respondent’s counsel and to the Tribunal, dated July 18, 2018.
77. 78Applicant’s Written Submissions, dated February 28, 2019, at paragraph 51.
78. 75AD, Tab 40 at Explanation of Benefits and OCF-18 for a Psycho-Vocational Assessment, dated July 6, 2018.