P.G. v. Intact Insurance Company, 2019 CanLII 119784

Citation: P.G. vs. Intact Insurance Company, 2019 ONLAT 18-005386/AABS

Tribunal File Number: 18-005386/AABS

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:

P.G.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the applicant: David Jose, Counsel

For the respondent: Linda Matthews, Counsel Tom Yen, Counsel

Interpreter: Tanweer Ahmad (Punjabi language)

HEARD: In Person on: May 21, 22, 23, 24, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on July 29, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”)¹.

2The applicant received income replacement benefits (“IRBs”) following the accident which were then terminated by the respondent effective November 14, 2016. The respondent also denied the cost of examinations for post 104 weeks IRB assessments. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

3A case conference was held by teleconference on November 15, 2018 and the parties were unable to resolve the issues in dispute. An order was issued with the same date noting the applicant’s claim for an award under Ontario Regulation 664. The applicant confirmed at the in-person hearing that they were no longer pursuing the claim for an award.

ISSUES

4The disputed claims in this hearing are:

(i) Is the applicant entitled to an income replacement benefit in the amount of $282.02 per week for the period November 14, 2016 to date and ongoing?

(ii) Is the applicant entitled to a cost of an examination expense in the amount of $23,916.12 for post 104-week income replacement benefit assessments recommended by HAL Disability, submitted on a treatment plan April 13, 2017, and denied by the respondent on April 26, 2017?

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

RESULT

5Based on the evidence before me, and on a balance of probabilities, I find that:

(i) The applicant is entitled to an income replacement benefit in the amount of $282.02 per week for the period November 14, 2016 to July 29, 2017 plus applicable interest in accordance with s. 51 of the Schedule.

(ii) The applicant is not entitled to an income replacement benefit at the rate of $282.02 per week for the period from July 30, 2017 onward.

(iii) The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for the occupational therapy (“OT”) situational assessment recommended by HAL Disability in a treatment plan (“OCF-18”) for a multi-disciplinary assessment submitted in the amount of $23,916.12.

(iv) The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for an orthopedic assessment recommended by HAL Disability in its OCF-18 submitted in the amount of $23,916.12.

(v) The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for a vocational assessment recommended by HAL Disability in an OCF-18 for a multi-disciplinary assessment submitted in the amount of $23,916.12.

(vi) The applicant is also entitled to $200.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for the completion of the OCF-18 prepared by Hal Disability.

(vii) The applicant is not entitled to the cost of examination expenses for the psychological assessment, neurological assessment, executive summary, and the transportation services which were submitted by Hal Disability in an OCF-18 for a multi-disciplinary assessment submitted in the amount of $23,916.12.

(viii) The applicant is not entitled to any interest on benefits which are not owing.

BACKGROUND

6The applicant was the seat belted driver of a vehicle which was stopped at an intersection. She proceeded through the intersection and her vehicle was t-boned by another vehicle on the front driver’s side. The applicant stated her vehicle spun around and her vehicle was struck a second time on the driver’s rear side by the same vehicle and she stated the airbags deployed. She was taken by ambulance to the hospital where she was examined for the cut above her left ear, and pain in bilateral knees, chest, and her left shoulder.

7The applicant worked full-time at [a restaurant] as a crew member for 20 months prior to the accident and it was her first and only job since she immigrated to Canada from India in 2010. She did not return to work following the accident and complains of ongoing pain in the area between the left side of her neck and shoulder which radiates down her left arm. Tingling is felt in the fingers of her left hand. Prior to the accident, the applicant had no prior illnesses, or injuries, or any extended absences from work.

ANALYSIS

Entitlement to IRBs within 104 weeks from November 14, 2016 to July 29, 2017

8The test for receiving IRBs within the first 104 weeks following the accident is defined within s. 5(1)1i of the Schedule. The insurer is required to pay an IRB to an insured person who was employed at the time of the accident, and as a result of and within 104 weeks after the accident, sustained an impairment which causes a substantial inability to perform the essential tasks of their employment. The formula for calculating the IRB is set out in s. 7(1) i of the Schedule. Although the respondent disputed entitled to IRBs the parties agreed on the potential weekly amount.

9I find the applicant is entitled to an IRB at the rate of $282.02 per week for the period of November 14, 2016 to July 29, 2017. I find on a balance of probabilities that the ongoing issue with the applicant’s left side neck and shoulder pain have resulted in a substantial inability in her being able to perform the essential tasks of her pre-accident employment as a [restaurant] crew member. I found the applicant to be credible and her testimony to be persuasive. I will provide further analysis below.

10The applicant’s job as a crew member at [a restaurant] was an active and busy job. She worked 40 hours per week at [a restaurant] and her shifts were either 5:00 am -1:00 pm, or 6:00 am - 2:00 pm. The applicant testified that the essential tasks of her employment included:

• Obtained items from storage room and refilled all supplies and condiments at condiment station, including cleaning and refilling soft drink dispensers. Ketchup bags used to refill ketchup dispenser were heavy and sometimes two people carried it to refill the dispenser;

• Refilled soap dispensers in washrooms, cleaned washrooms, cleaned high mirrors in bathroom, and mopped floors;

• Wiped food trays;

• Mopped and swept floors in restaurant (more frequently during winter months);

• Took muffins out of freezer to place on trays and place in oven;

• Wash and dry trays 3-4 times prior to 11:00 am;

• Fill up and clean condiment trays located below cash register;

• Took food orders from customers, and handled cash register;

• Mixed salads with the toppings/fixings if it was not busy; and,

• Stocked up drive-thru and lobby area with condiments and supplies before she finished her shift.

11An ultrasound of the left shoulder dated November 21, 2015² noted a partial intrasubstance tear of the supraspinatus tendon. Complaints of neck and left shoulder pain were reported to Dr. Y.S. Dhaliwal, family doctor up to April 16, 2016 which was the last CNR produced for the hearing. The applicant stated Dr. Dhaliwal’s CNRs were not produced beyond April 2016 because the insurance examination (“IE”) assessors had the necessary medical documentation at the time they assessed her within 104 weeks and then denied further payment of IRBs. I find the documentary evidence produced by the applicant for the hearing was sufficient to determine the applicant’s entitlement to IRBs within 104 weeks of the accident.

12The applicant provided an explanation why the first-time naproxen showed up on the prescription summary was on July 11, 2016 and why the last time it was noted on the prescription summary was August 22, 2017.³ She stated the pharmacy that filled her prescriptions had two files under her name which she had requested be merged. Therefore, some of her prescriptions were noted under two different files. I find the applicant’s explanation plausible explaining why Naproxen did not show up on the applicant’s prescription summary prior to July 11, 2016.

13I did not find credibility issues with the applicant’s testimony compared to what was noted within the Motor Vehicle Collision Report (“report”)⁴ and the Application for Accident Benefits (“OCF-1”). The respondent raised credibility issues with the applicant regarding the details she provided relating to the impact to her vehicle at the time of the accident. The applicant testified there were multiple impacts to her vehicle. The report did not note multiple impacts. The applicant stated the police officer who issued the report never spoke with her and he only issued her a ticket when she was at the hospital. It was put to the applicant that on OCF-1 which she submitted to the insurer noted her vehicle had “flipped”. The applicant clarified that she did not have the assistance of an interpreter when she completed the OCF-1 and she testified that her car spun after the multiple impacts and she clarified that her vehicle did not flip. I accept the applicant’s explanation provided regarding the discrepancies.

14The applicant stated she has not returned to work since the accident, nor asked her employer for modified duties, or inquired if there is another job opportunity with [the restaurant]. She stated this is because at work she would not be able to take breaks, nor rest when she feels pain in her left shoulder/arm area. She stated that since the accident, she relies on her husband to carry the laundry bin downstairs, or she will drag it downstairs using her right arm. She now relies on her husband, or her oldest son to assist her with carrying the grocery bags. The applicant stated she does the sweeping at home, assists with the preparation of vegetables 2-3 times per week and washes the dishes if there is a lot. She further stated her mother-in- law assists her with mopping at home as the pain will increase in her left shoulder after a few minutes of mopping. She stated she also has difficulty sleeping through the night due to pain on her left side. She stated she relies on her mother-in-law to take her two children to school if she was unable to sleep well the night before.

15I find the surveillance generally supports the applicant’s testimony and that she predominantly uses her right hand/arm to hold and carry objects. The surveillance evidence supports that she would be unable to perform the essential tasks of her pre-accident employment. Her pre-accident employment involved utilizing both of her hands, arms and shoulders to perform the essential tasks of a [restaurant] crew member in an environment which was typically fast-paced and busy. The surveillance for the week of September 17, 2018 showed the applicant walking her oldest son approximately a three-minute walk to and from school every day that week. The surveillance confirmed she usually carried items such as a cellphone, her son’s lunch, and his sweater in her right hand. She was observed on one occasion carrying her son’s lunch and his sweater in her left hand. Further surveillance taken on March 20, 2019 showed the applicant in a grocery store reaching overhead with her right arm to pick up an item from the top shelf. She also picked up oranges and ginger with her left hand and placed them in bags held in her right hand. Her husband was shown pushing the shopping cart and he unloaded the grocery bags into the vehicle. The surveillance also showed her carrying a container of ice cream with her right arm before passing it to her son.

16I find the applicant’s left side neck and shoulder pain had not resolved by February 2016. The applicant was referred to Dr. T. Papneja, rheumatologist. Dr. Papneja issued a letter dated February 25, 2016⁵ which noted cortisone injections were discussed. The applicant stated she declined them as the injections are painful and they may not work. Dr. Papneja noted Naproxen was being discontinued as it was not that helpful.

17The last physiotherapy treatment plan (“OCF-18”) dated January 29, 2016, submitted by Dr. R. Sodhi was denied by the respondent on February 10, 2016. This treatment plan noted her neck and shoulder pain as a 5/10 and a 65% improvement in her neck and a 55% improvement in her left shoulder.⁶ The previous physiotherapy treatment plan dated October 29, 2015 noted the applicant rated her neck and shoulder pain at 8/10. I find this information supports the contention that while the applicant’s neck and shoulder pain had not resolved, it was steadily improving. The applicant provided a plausible explanation for discontinuing physiotherapy treatment. She stated after the denial of the treatment plan on February 10, 2016 she was not working and could not continue to pay for treatment out of her own pocket.

18The applicant underwent two MRIs in December 2016⁷ which included an MRI of the cervical spine on December 17, 2016 and at C4-C5 it noted borderline central canal narrowing. At C5-C6 it noted mild right-side neural foraminal canal narrowing. The MRI concluded there was congenital spinal canal narrowing with minimal superimposed degenerative changes. The MRI of the left shoulder done on December 29, 2016 found trivial glenohumeral joint effusion. She confirmed that Dr. Dhaliwal did not refer her to an orthopedic surgeon, or a pain specialist following these MRIs but provided no further explanation.

19Dr. Getahun prepared an orthopedic assessment report on behalf of the applicant, dated May 10, 2017.⁸ I am not persuaded by the opinion of Dr. T. Getahun, orthopedic surgeon regarding the cause of the applicant’s left-side neck and shoulder pain and therefore assign little weight to his report. Dr. Getahun did not provide an explanation how the neural foraminal canal narrowing on the right side as evidenced in the MRI could cause the applicant to experience pain on her left side. He relied on the results from the MRI’s done in December 2016, performed a documentation review, and conducted a physical examination of the applicant. He diagnosed the following injuries resulting from the accident: myofascial strain of the cervical spine, left shoulder and thoracic strain. Dr. Getahun opined that the applicant’s injuries to her neck and shoulder have not resolved due to a combination of a congenital issue which was a narrowing of her spinal canal narrowing and also degenerative changes. Dr. Getahun stated he specializes in the areas of hip, knee, foot, and ankle replacements and would refer a patient with symptoms like the applicants to an orthopedic surgeon. He confirmed he did not refer her to another orthopedic surgeon and did not provide further explanation.

20I prefer the opinion of Dr. C. Boulias, physiatrist which diagnosed the applicant with left-side rotator cuff tendonitis. Dr. Boulias produced an insurer’s examination (“IE”) report contained within a multi-disciplinary report dated March 31, 2016.⁹ I find his report to be supported by his physical findings. He concluded that the applicant suffered a substantial inability to perform the essential tasks of her employment due to her diagnosis of left-side rotator cuff tendonitis. He opined she experienced a physical limitation and as a result would have difficulty with reaching and overhead reaching. These were both activities the applicant frequently engaged in for her job as a [restaurant] crew member. Dr. Boulias opined that with appropriate treatment the applicant would be able to resume her pre-accident employment. I find the applicant did not receive the appropriate treatment for her neck and left shoulder as recommended by Dr. Boulias as her physiotherapy treatment stopped after the last OCF-18 was denied in February 2016. Subsequently, as she received no further treatment to address her left shoulder tendonitis, I find the issues with her shoulder did not resolve and this resulted in her having a substantial inability to perform the essential tasks of her pre-accident employment. An addendum report dated May 30, 2016¹⁰ was completed by Dr. Boulias and his opinion remained unchanged.

21An IE report dated October 26, 2016¹¹ was completed by Dr. R. Saplys, orthopedic surgeon. He specialized in the areas of hip, knee, and shoulders. His diagnosis noted soft tissue injuries including: strains to the paracervical, paralumbar structures, and a left shoulder strain. He opined that if she did have a tear in her left shoulder that it was likely degenerative in nature and her left shoulder complaints were not consistent with the mechanism of the accident. Dr. Saplys noted that there was inconsistency with the applicant upon examination as she was observed to turn her head more easily when answering questions from the interpreter, compared to when Dr. Saplys performed a direct examination of her cervical spine. I do not find this detail significant enough to establish that the applicant is magnifying her symptoms.

22I did not find portions of Dr. Saplys’ report detailed. His report noted that the applicant denied numbness or tingling in her upper extremities and he testified that he was unaware that the applicant had reported tingling and numbness down her left arm. He stated a nerve comprised in her neck could cause shoulder pain which could be a secondary diagnosis but stated he saw no evidence of nerve compromise in the applicant’s documentation he reviewed. However, it was put to Dr. Saplys that the IE reports of Dr. R. Woods, psychologist, dated October 27, 2015 and Dr. T. Walters, general practitioner both noted the applicant complained about pain radiating down her left arm.¹² Dr. Saplys’ IE report noted reviewing both these reports. He stated he did not find it was clinically significant as he found no evidence of any functional impairment, and nothing anatomically wrong with her left shoulder. The documentary evidence confirms that the applicant had reported on at least two occasions pain radiating down the left side of her arm and this information was before Dr. Saplys at the time he assessed the applicant but was not explored or commented on further by Dr. Saplys.

23Dr. Saplys opined that the right-side neural foraminal canal narrowing evidenced from the MRI would not cause pain on the left side of her neck/shoulder and disagreed with Dr. Getahun’s opinion regarding the cause of the applicant’s left shoulder pain. Dr. Saplys did not provide a different diagnosis but stated that nerve root compromise usually manifests itself shortly after an accident and the applicant had not been referred to a neurologist. I am persuaded by Dr. Saplys opinion in this regard. Although Dr. Saplys disagreed with the diagnosis and opinion of Dr. Boulias done 7 months earlier, I am persuaded by the diagnosis made by Dr. Boulias for the reasons I noted above.

24Dr. Saplys concluded that the applicant had the functional orthopedic capacity to return to her usual employment on a full-time basis. However, his report noted no details regarding what the essential tasks of her employment were. As a result, I find his report incomplete in this regard as I find it first needs to be established what the applicant’s essential tasks of her pre-accident employment were prior to Dr. Saplys concluding she has the ability to perform these essential tasks. I find the Tribunal decision put forth by the applicant, 16-000179 v. Old Republic Insurance Company¹³ to be persuasive because it confirms the importance of knowing and referring to the essential tasks of an applicant’s employment when forming opinion regarding their ability to work. The adjudicator in that decision preferred the applicant’s physiatry assessment report over the physiatry IE assessment report as the IE assessor opined on the applicant’s ability to perform the essential tasks of her employment but did not discuss what those essential tasks were.

25I am persuaded by the functional capacity evaluation IE report dated March 31, 2016 issued by Mr. R. Finlay, occupational therapist (“OT”).¹⁴ The report noted the applicant performed some of the tasks with sub-maximal effort. These tasks included: waist to floor lifting, waist to crown lifting, front carrying, grip strength, push/pull were carried out by the applicant with sub-maximal effort. He was unable to determine her strength classification as she discontinued all lifting tasks. The report noted pain behaviours were evident throughout the assessment, increased in severity at times in the areas of her neck, mid back, and left shoulder. I find this to be a plausible explanation as to why some of the tasks were performed with sub-maximal effort. He concluded that her demonstrated job abilities matched her job demands of her pre-accident employment except for overhead lifting. I find this report supports that the applicant would have a substantial inability to perform the essential tasks of her pre-accident employment.

26I find the functional abilities evaluation IE report completed by Ms. Z. Lee, physiotherapist, dated October 26, 2016¹⁵ provides further evidence that the issues with the applicant’s left shoulder were not resolved at the time this assessment was done. Ms. Lee noted she could not objectively identify the presence or absence of a consistent functional limitation and/or impairment due to the applicant’s limited participation in the functional evaluation due to her reported pain in her left shoulder.

27In regard to psychological impairment, based on the totality of the evidence, I do not find it supports the applicant suffers from any psychological impairment. I rely on the applicant’s testimony in which she stated she has not undergone any psychological treatment and has not reported any psychological complaints to Dr. Dhaliwal. I find the psychological IE assessment report prepared by Dr. J. Bacchiochi, psychologist, dated October 26, 2016¹⁶ which was done with a Punjabi interpreter present provides further support the applicant did not suffer from a psychological impairment. The assessment involved an in-person interview, combined with psychometric testing and concluded the applicant did not suffer from a substantial inability to perform the essential tasks of her employment within 104 weeks of the accident.

28The respondent relies on the Tribunal decision, 18-000007 v. Cooperators General Insurance Company¹⁷ in which the applicant’s disability certificate (“OCF-3”) estimated the period of disability of 9-12 weeks and did not support the applicant’s IRB claim for the period in dispute. I am not persuaded by this case based upon the totality of the evidence before me which includes the applicant’s testimony describing her limitations following the accident, the consistent reporting of ongoing left side neck and shoulder pain to Dr. Dhaliwal up to April 2016, the referral to Dr. Papneja in February 2016, the denied treatment plan of Dr. Sodhi in February 2016 which noted her neck and shoulder were improving but had not resolved, and the diagnosis and opinion reached by Dr. Boulias.

29The respondent further relied on the Tribunal decision, 17-009034 and Aviva Insurance Canada¹⁸ in which the medical evidence did not support an ability for the applicant to return to performing the essential tasks of his pre-accident employment. I find that case distinguishable from this one as in that case, the applicant had returned to work within 104 works of the accident. In the case before me, the applicant had not returned to work since the accident.

30I find the applicant suffered a substantial inability to perform the essential tasks of her employment within 104 weeks of the accident and is therefore entitled to an IRB at the rate of $282.02 per week for the period of November 14, 2016 to July 29, 2017. Her job at [a restaurant] was not a sedentary job. It was a job in which she was on her feet and was moving around. Her duties involved bending, reaching, lifting, and activities such as mopping which involved the extension of her arm and shoulder muscles which she testified aggravated her pain and caused her to become fatigued. These activities were being performed continuously over the course of an 8-hour shift. I find the functional capacity reports dated March 31, 2016 and October 26, 2016 provide support that she was not be able to perform the essential tasks of her pre-accident employment. I find the opinion of Dr. Boulias persuasive that the applicant’s left shoulder tendonitis had not resolved by March 2016. Further treatment was recommended for her left shoulder tendonitis before she would be able to return to her pre-accident employment and the applicant did not receive further treatment for her left shoulder. Therefore, I find the issues with the applicant’s neck and left shoulder had not resolved and the pain she experienced when utilizing her left arm and shoulder rendered her unable to perform the essential tasks of her pre-accident employment.

Entitlement to IRBs Post 104 Weeks

31Section 6(2)(b) of the Schedule sets out the test for entitlement to an IRB after 104 weeks from the date of the accident. To qualify for receiving IRBs the applicant needs to demonstrate that as a result of the accident, she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

32The respondent’s position is that the applicant could return to her job at [a restaurant] and does not meet the test for IRBs within 104 weeks of the accident and therefore does not meet the test for post 104 week IRBs and there was no need to suggest alternative vocations. The applicant’s position is the opposite. I find on a balance of probabilities that the applicant has not suffered a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

33The applicant relies on the multi-disciplinary assessment report dated September 29, 2017 completed by Hal Disability Management¹⁹ in support of its position that the applicant is entitled to IRBs post 104 weeks. The report contained a neurological assessment report completed by Dr. R. Muller, neurologist which I do not afford any weight to. He opined that her dysesthetic chest wall pain would make it doubtful that she could return to any employment. However, I do not find this to be supported within the CNRs of the family doctor, Dr. Dhaliwal. The CNRs noted rib and sternum pain in August 2015 but further CNRs reference breast pain unrelated to the accident. The applicant testified her primary complaints are ongoing pain in the areas of her neck, left shoulder, and tingling down her left arm.

34The applicant also relies on Dr. Getahun’s orthopedic assessment report which formed part of the multi-disciplinary assessment. I afforded little weight to his report for the reasons I noted above. Dr. Getahun concluded she was unable to return to her pre-accident employment and having completed up to Grade 12 in her education that she is unable to return to any suitable form of employment, based on her education, training, and experience. I disagree with this. I do not find her to be totally disabled because of her ongoing left side neck and shoulder pain. This is supported by the surveillance evidence. Further, despite her grade 12 education and limited English-speaking skills, she worked as a crew member at [a restaurant] for 20 months prior to the accident. Mr. Finlay’s functional capacity evaluation IE report dated March 31, 2016 noted that the applicant can sit for 40 minutes and demonstrated a cumulative standing/walking tolerance for approximately 35 minutes. Therefore, I find the combination of her not being totally disabled along with her retail experience she acquired working at [a restaurant] supports my finding that she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

35I find the results obtained within the OT situational assessment (part of the multi-disciplinary assessment), completed by T. Chang, O.T. to be persuasive in assisting with the determination of whether the applicant meets the post 104 week test for IRBs. Although this assessor found the applicant suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience, I disagree. It was noted she could follow basic verbal and written instructions but would become distracted by pain or fatigue. It was noted that the applicant failed to meet the methods-time-measurement (“MTM”) rate of work score on all 13 modules on day one of the assessment. On day two of the assessment, she met the MTM rating on 1/13 modules; payroll computation which involved clerical/numerical perception. It was noted that she was within the top 33% to middle third of the general population in numerical aptitude.

36The report noted she had increased pain in areas of her head, neck, upper back, and left shoulder, accompanied by fatigue with both sedentary and physical tasks. Difficulty with physical tasks which required lifting, carrying, repetitive sliding of weight on a surface, and overhead lifting. While I accept that her performance during the two-day situational assessment was impacted by her pain and fatigue, I am not persuaded she cannot obtain any other employment based on her education, training, and experience as she was able to complete the payroll computation module within the MTM time and scored well in comparison to the general population.

37The vocational assessment done by the applicant’s assessors, Dr. L. Hsu and Dr. D. Salmon, psychologists formed part of a multi-disciplinary assessment report, dated March 30, 2017. The assessors found she demonstrated verbal comprehension and visual based learning abilities which fell within the borderline range. Her verbal/auditory learning fell within the average range. She averaged around a grade 5 level in the areas of reading, spelling and arithmetic. While the report noted she experienced difficulty with sustaining attention and concentration, work pacing, and activity persistence, it was noted that the applicant’s difficulties appeared to be largely a result of the pain issues she cited in her left shoulder neck, back, and arm. The assessment noted Toronto region based pre-high school occupations which included: retails sales clerks (semi/sedentary), order filler and price marker, ticket taker and usher, dry cleaning and laundry occupations. Based on this information, I find the suggested jobs noted above to be acceptable jobs the applicant could perform, except for the dry cleaning and laundry occupation. I find that job would involve extensive use of her left arm and shoulder which would aggravate her pain and increase her level of fatigue as a result. The other suggested jobs would require the use of her left shoulder and arm to a lesser degree to what she had utilized them when performing her pre-accident duties at [a restaurant]. As a result, the strain on her left arm and shoulder would be reduced which would reduce her level of pain and fatigue.

38The applicant has not proffered any medical evidence beyond April 2016, nor has she provided an explanation why Dr. Dhaliwal has not referred her to an orthopedic surgeon, or a pain specialist. I find this evidence in addition to what I have noted above supports on a balance of probabilities that the applicant does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.

Is the cost of an examination for a multi-disciplinary assessment in the amount of $23,916.12 for the post-104 IRB determination reasonable and necessary?

39The applicant relies on the multi-disciplinary assessment dated March 30, 2017 submitted in a treatment plan (“OCF-18”) by Dr. D. Salmon, psychologist to support her entitlement to post 104 week IRBs. The treatment plan proposed the following:

• $2,588.24 - psychological assessment, testing, significant other interview, analysis, report

• $4,235.29 - OT situational work assessment

• $4,852.94 – orthopedic assessment

• $1,000.00 – executive summary

• $200.00 – completion of OCF-18

• $1,000.00 – transportation services

• $2,588.24 – vocational assessment

• $4,700.00 – neurological assessment

40The multidisciplinary report included an executive summary and a multi-disciplinary file review. The following reports were included: neurological report, by Dr. P. Muller (neurosurgeon), orthopedic report by Dr. T. Getahun (orthopedic surgeon), a combined psycho-vocational assessment by Dr. L. Hsu and Dr. D. Salmon (psychologists), and two-day situational assessment by Dr. T. Chang, O.T.

41I find the multi-disciplinary assessment to be partially payable. I find the OT situational assessment, the orthopedic assessment, and the vocational assessment to be reasonable and necessary. I find these assessments are payable at a maximum of $2,000.00 each plus HST in accordance with s. 25 of the Schedule. I also find the cost of completing the OCF-18 to be reasonable and necessary and is payable in accordance with the Professional Services Guideline.²⁰ I do not find the remainder of the multi-disciplinary assessment to be reasonable and necessary. I will elaborate on my findings below.

42The applicant stated that the respondent produced no evidence of alternative jobs she could do, nor was any vocational testing produced by the respondent. The applicant relied on the Tribunal decision 17-001981 v. RBC General Insurance Company²¹ in which the applicant was awarded the full cost of the multidisciplinary post 104 week IRB determination report (“determination report”) which was completed by five assessors. The adjudicator found the determination report to be more thorough in comparison to the two IE reports produced by the respondent as it addressed the applicant’s physical, emotional, and pain limitations and provided recommendations to improve the applicant’s tolerance/stamina. However, I was not persuaded by this case because determining what is reasonable and necessary is fact specific and the facts in the case before me do not support that all the completed assessments were reasonable and necessary for the reasons I provide below.

43The respondent argues that the post 104 week multi-disciplinary report is not reasonable and necessary and relies on the IE orthopedic and psychological paper reviews dated May 9, 2017 completed by Dr. Saplys and Dr. Bacchiochi.²² Dr. Saplys concluded the multidisciplinary assessment was not reasonable and necessary as the applicant sustained soft tissue injuries which should have resolved within three months following the accident. Dr. Bacchiochi found the multi-disciplinary assessment was not reasonable and necessary from a psychological perspective.

44The respondent relies on the Tribunal decision 18-001406 v. Certas Home and Auto Insurance Company²³ in which the adjudicator noted that under the Schedule, an insurer is only required to pay for rebuttal reports in instances necessary to determine catastrophic impairment. I am not persuaded by this case. In the case before me, the applicant is seeking entitlement to IRBs post 104 weeks and obtained the multidisciplinary assessment in support of her IRB claim. The respondent did not obtain any post 104 IE assessments of its own. I do not accept that the applicant’s multidisciplinary assessment reports were rebuttal reports. I have reviewed each of the assessments contained with the applicant’s multidisciplinary assessment below to determine if they are reasonable and necessary.

psychological assessment

45I find the psychological assessment is not reasonable and necessary. Since the accident, the applicant has not undergone any psychological treatment and has not reported any psychological complaints to her family doctor, Dr. Dhaliwal. Within this assessment, Dr. Salmon and Dr. Hsu diagnosed the applicant with Pain Disorder Associated with both Psychological Factors and a General Medical Condition, and a sleep impairment. I have already addressed why I do not accept the applicant suffers from any psychological impairment. The applicant testified that if she gets a good night’s sleep, she will walk her son to school the next morning. The surveillance evidence of September 2018 confirmed she was able to walk her son to and from school on five consecutive days. As a result, I do not find a sleep impairment generally affected this activity of daily living. It is noted within the report that the applicant told the assessors that the pain in her neck, left shoulder/arm, and back is the main problem for not being able to maintain a job or succeed in school. On a balance of probabilities, I do not find the applicant has met their burden of proof to establish this assessment is reasonable and necessary.

OT situational work assessment

46I find the OT situational work assessment is reasonable and necessary. It provided a thorough assessment of how the applicant performed situational work-like tasks and provided a description of the results which were measured. This assessment report also included a list of recommendations to improve her stamina and tolerance to restore her sense of functioning and well-being. I found this helpful as it provided a fulsome perspective of what her capacity is and what can be done to promote her physical improvement. I utilized this assessment to assist me with determining the applicant’s entitlement to post-104 IRBs.

orthopedic assessment

47I find the orthopedic assessment by Dr. Getahun to be reasonable and necessary. I find there were divergent opinions between the respondent’s physiatry IE assessor, Dr. Boulias, and its orthopedic IE assessor, Dr. Saplys regarding the applicant’s left shoulder. As a result of this, I find it was reasonable and necessary for the applicant to obtain her own orthopedic assessment to determine what was going on with her left shoulder, even though I was not persuaded by Dr. Getahun’s opinion regarding the cause of the applicant’s left side shoulder and neck pain.

executive summary

48I find the executive summary in the amount of $1,000.00 contained within the multi-disciplinary assessment is not reasonable and necessary. I find it is a duplication of service and does not amount to fees and expenses for conducting any one assessment. Therefore, the applicant is not entitled to receive payment for the cost of the executive summary.

completion of OCF-18

49I find this expense is reasonable and necessary. As I have found three out of the five components proposed within the multi-disciplinary assessment to be reasonable and necessary, I find the cost for completing the OCF-18 which proposed the multi-disciplinary assessment is reasonable and necessary. The applicant is entitled to payment in the amount of $200.00 plus HST in accordance with the Professional Services Guideline.

transportation services

50I do not find the applicant has met their burden of proof which demonstrates the transportation expense claimed in the amount of $1,000.00 is reasonable and necessary. The applicant has not proffered any evidence which supports this expense is reasonable and necessary. Therefore, I find the transportation expense is not payable.

vocational assessment

51I find the vocational assessment to be reasonable and necessary as it assisted me with my determination regarding the applicant’s entitlement to post 104 week IRBs. The assessment provided information regarding her intellectual/learning status, academic/retraining status, and personal/vocational characteristics. The assessment also provided a list of suitable occupations requiring less than high school completion, based on her English as a second language status and the poor measured functional status from the cognitive and aptitude testing results. The respondent produced no evidence of alternative jobs she could do, nor was any vocational testing produced by the respondent.

neurological assessment

52I also find the neurological assessment is not reasonable and necessary as the assessor, Dr. Muller did not find any evidence of neurological compromise. There were no neurological concerns, or potential neurological related impairment noted by Dr. Dhaliwal, family doctor, nor was the applicant referred to a neurologist. Dr. Muller noted complaints of chest wall pain which was documented in CNRs of the family doctor, Dr. Dhaliwal in August 2015 but further CNR entries noted complaints of breast pain unrelated to the accident. The applicant also testified her primary complaint and inability to return to work stemmed from the ongoing pain in the left side of her neck and shoulder. Therefore, I do not find the applicant has established this assessment is reasonable and necessary.

INTEREST

53I find the applicant is entitled to interest in accordance with s. 51 of the Schedule for benefits owed.

CONCLUSION

54I find that the applicant is entitled to receive an income replacement benefit at the rate of $282.02 per week for the period November 14, 2016 to July 29, 2017 plus applicable interest in accordance with s. 51 of the Schedule.

55The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for the OT situational assessment recommended by HAL Disability in its OCF-18 submitted in the amount of $23,916.12.

56The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for an orthopedic assessment recommended by HAL Disability in its OCF-18 submitted in the amount of $23,916.12.

57The applicant is entitled to the cost of examination expenses in the amount of $2,000.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for a vocational assessment recommended by HAL Disability in the treatment plan submitted in the amount of $23,916.12.

58The applicant is also entitled to $200.00 plus HST and applicable interest in accordance with s. 51 of the Schedule for the completion of the OCF-18 prepared by Hal Disability.

59The applicant’s claim for the following benefits are dismissed:

(i) an income replacement benefit at the rate of $282.02 per week for the period from July 30, 2017 onward;

(ii) the cost of examination expenses for the psychological assessment, neurological assessment, executive summary, and the transportation services submitted by Hal Disability in a treatment plan in the amount of $23, 916.12 and;

(iii) interest on any benefits found not to be owing.

Footnotes

1. 1O. Reg. 34/10
2. 2Exhibit 3 – Joint Document Brief, Volume 3, Tab N, at 1097
3. 3Ibid, Tab Q, at 1139-1140
4. 4Exhibit 1 - Joint Document Brief, Volume 1, Tab A, at 6
5. 5Exhibit 2 – Joint Document Brief – Volume 2, Tab J, at 658
6. 6Supra, note 2, Tab N, at 1120, 1121
7. 7Supra, note 2, Tabs P1, P2, at 1135-1137
8. 8Supra, note 2, Tab M
9. 9Supra, note 5, Tab G13
10. 10Supra, note 5, Tab G14
11. 11Supra, note 2, Tab K3
12. 12Supra, note 2, Tab L, at 842, 890
13. 1316-000179 v. Old Republic Insurance Company, 2016 CanLII 73692 (ONLAT)
14. 14Supra, note 2, Tab L4
15. 15Supra, note 5, Tab K2, at 701
16. 16Supra, note 2, Tab K4
17. 1718-000007 v. Cooperators General Insurance Company, 2019 CanLII 14935 (ONLAT)
18. 1817-009034 and Aviva Insurance Canada, 2019 CanLII 34621 (ONLAT)
19. 19Supra, note 2, tab M
20. 20Professional Services Guideline, Superintendent’s Guideline No. 03/14, Financial Services Commission of Ontario
21. 2117-001981 v. RBC General Insurance Company, 2019 CanLII 18326 (ONLAT)
22. 22Supra, note 2, tabs K6, K7
23. 2318-001406 v. Certas Home and Auto Insurance Company, 2018, 132564 (ONLAT)