Tribunal File Number: 17-004072/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:
G.T.
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR: Paul Gosio
Appearances:
For the Appellant: Grace Theater, Applicant Michael Yermus, Counsel
For the Respondent: Chelsea Gilder, Counsel
Heard In-Person: Hearing: July 8, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on March 27, 2015. She did not require immediate medical attention, took medication for her pain and eventually made her way to work. By the following day, her pain worsened. She began to experience pain in her “whole body” including her neck, back and shoulders.
2The applicant continued to work through her pain until she took a medical leave on July 8, 2015. She then began to receive an income replacement as she could no longer complete the essential task of her pre-accident employment. The applicant received the income replacement benefit from July 16, 2015 to March 9, 2017. The applicant then attended various s.44 examinations as she neared the 104 week mark post-accident. Based on the strength of the s.44 examinations, the respondent denied the applicant any further entitlement to the income replacement benefit.
3The applicant also sought and received medical benefits in order to address both her physical and psychological impairments. The applicant then submitted additional treatment plans which the respondent denied, taking the position that further treatment was not reasonable and necessary. The applicant’s challenge to the denials of the income replacement and medical benefits form the basis of this application.
ISSUES IN DISPUTE
4The parties agreed that following issues are in dispute:
I. Is the applicant entitled to an income replacement benefit in the amount of $224.27 per week for the time period from March 10, 2017 to date and ongoing?
II. Is the applicant entitled to receive a medical benefit in the amount of $1,805.00 for physiotherapy services recommended by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan submitted on October 4, 2016 and denied by the respondent on October 18, 2016?
III. Is the applicant entitled to receive a medical benefit in the amount of $3,129.48 for psychological services recommended by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan submitted on November 18, 2016 and denied by the respondent on December 2, 2016?
IV. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant has met her onus of establishing on a balance of probabilities that she suffers a substantial inability to perform the essential task of her pre-accident employment. As a result, she is entitled to an income replacement benefit in the amount of $224.27 per week for the time period from March 10, 2017 to March 27, 2017. Interest is payable.
6The applicant has not met her onus of establishing on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. As a result, she is not entitled to receive an income replacement benefit in the amount of $224.27 per week for the time period from March 27, 2017 to date.
7The applicant is entitled to the medical benefits in dispute as they are reasonable and necessary. Interest is payable.
INCOME REPLACEMENT BENEFIT
8Entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 5(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2)(b) provides that the benefit is only payable after 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
First 104 Weeks
9The time period in dispute with respect to the first 104 weeks is from March 10, 2017 to March 27, 2017. The applicant bears the onus of establishing on a balance of probabilities that she suffered from a substantial inability to perform the essential tasks of her employment during that time.
10There is no dispute that the applicant was working as a bartender at the time of the accident. The essential tasks of her employment included: changing beer kegs, replacing pop refills on dispensers, changing dispenser gases as required, restocking the freezer, cleaning tables, rearranging furniture nightly, replacing wine bags, cleaning under the counter and dusting the walls. The nature of her work was repetitive and involved prolonged periods of standing, bending, crouching and reaching.
11The applicant submits that she continued to suffer from a substantial inability to perform the essential tasks of her pre-accident employment during the time period in dispute due to her physical and psychological impairments.
12In support of her position, the applicant relies, in part, on the following:
I. The report of the applicant’s family doctor, Dr. Zahavi, dated January 17, 2016. Dr. Zahavi notes that the applicant suffered from a cervical sprain (whiplash), thoracic sprain, lumbar strain, bilateral shoulder strain and headaches. Dr. Zahavi further notes that the applicant’s inability to return to her pre-accident employment is directly attributable to the injuries she sustained in the motor vehicle accident as well as the onset of her chronic pain. He noted that the chronicity of her pain would prevent her from fulfilling the requirement to lift and move heavy beer kegs.
II. The report of Dr. Fern, orthopaedic surgeon, dated July 20, 2016. Dr. Fern notes that the applicant sustained injuries to her neck and back which would be consistent with sprain and strain myofascial type injuries. Dr. Fern goes on to explain that the applicant’s injuries are more significant than a simple sprain or strain type problem as there has been persistent symptomology more than a year post-injury. He considered that the applicant was developing some chronic mechanical problems with regard to her neck and back. Dr. Fern concluded that the applicant’s ongoing pain and problems with her neck and back affect her ability to return to her pre-accident employment as a bartender. Dr. Fern anticipates that the applicant will have difficulties with activities that require her to maintain prolonged static posture or prolonged flexed positions. Dr. Fern also notes that the applicant will have difficulties with activities that require repetitive bending, lifting or twisting and as a result, the specific activities required of the applicant as a bartender will be impacted.
III. The report of Dr. Chauhan, chiropractor. Dr. Chauhan completed a Functional Abilities Evaluation on September 4, 2016. Her report notes that in terms of physical demands, the applicant is currently unable to have a job beyond sedentary as she will exacerbate her condition. She opined that due to the applicant’s physical condition and the degeneration in her lower back and neck, she will find it difficult to meet the physical demands of pre-accident employment as a bar steward.
IV. The report of Dr. Pilowsky, psychologist, dated November 9, 2016, wherein she diagnosed the applicant with the following DSM-V diagnosis: Major Depressive Disorder (recurrent, severe), Post-traumatic Stress Disorder with Phobic Symptoms in a Vehicle, Persistent Severe Somatic Symptom Disorder with Predominant Pain and Excessive Cannabis and Alcohol Use. Dr. Pilowsky noted that the applicant’s impairments are disabling and affect her capacity to work and that her ongoing disability impairs her ability to work in her prior occupation as a bartender. Dr. Pilowsky completed a Psychological Reassessment Report dated January 27, 2017 wherein her diagnosis and opinion remained unchanged.
V. The disability certificates of Dr. Tansneem dated September 2, 2015, Dr. Manoharan dated March 7, 2016 and Dr. Zahavi dated October 31, 2016, all which indicate that the applicant is substantially unable to perform the essential tasks of her employment as a result of and within 104 weeks of the accident.
13The respondent’s position that the applicant did not suffer from a substantial inability to perform the essential tasks of her employment for the time period from March 10, 2017 to March 27, 2017 is based in part on the following:
I. The report of Dr. Moddel, neurologist, dated February 17, 2017. Dr. Moddel concluded that from a neurological perspective, there was no evidence of any physical restrictions or functional limitations and that there was no evidence of a neurological impairment as a result of the accident. He opined that the applicant’s prognosis was excellent and that the applicant was able to carry on with the essential tasks of her pre-accident employment.
II. The report of Dr. Baker, physiatrist, dated February 17, 2017. Dr. Baker’s reported noted that the applicant indicated that she experienced an overall improvement of 75% in her accident related complaints. Dr. Baker concluded that there is no definitive musculoskeletal or neurological reason why the applicant cannot return to work and that she would not have a substantial inability to perform the essential tasks of her pre-accident employment.
III. The report of Dr. Saunders, psychologist, dated February 17, 2017. Dr. Saunders opined that the applicant was experiencing a mild level of symptoms that did not meet the DSM-IV clinical criteria for impairment. He found that there was no evidence of a psychological impairment and that the applicant did not display any functional limitations. Dr. Saunders concluded that from a psychological perspective, the applicant did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment.
14I am persuaded by the applicant’s evidence and find, on a balance of probabilities, that the applicant suffered from a substantial inability to perform the essential tasks of her pre-accident employment for the time period from March 10, 2017 to March 27, 2017.
15First, I found the applicant’s testimony to be compelling. She explained how her physical and psychological impairments interfere with her ability to perform the essential tasks of her pre-accident employment. I found her description of her impairments and limitations to be consistent with the totality of the evidence before me and as a result, I find her evidence to be particularly persuasive on this issue.
16Second, I note that Dr. Zahavi has been the applicant’s family doctor since approximately October 2012. He saw the applicant regularly in relation to her accident- related injuries and played an integral part in the rehabilitation process. Given this, Dr. Zahavi was in an ideal position to understand and assess the nature of the tasks involved in the applicant’s pre-accident employment and how the completion of these task would be impacted by the nature and severity of the applicant’s injuries. As such, I find Dr. Zahavi’s evidence to be particularly persuasive on this issue.
17Third, I have given little weight to the conclusions drawn by the respondent’s assessors. The respondent’s assessors concluded from both a physical and psychological perspective, that the there was no evidence of any physical restrictions or functional limitations on the part of the applicant. These conclusions are contradictory to the totality of the evidence before me and I find that they do not paint an accurate picture of the applicant’s actual functional capacity.
18Given the discussion above, I am persuaded on a balance of probabilities that the applicant suffered from a substantial inability to perform the essential tasks of her pre-accident employment for the time period from March 10, 2017 to March 27, 2017.
Post 104 Weeks
19In order for the applicant to be eligible for the income replacement benefit after the first 104 weeks from the date of the accident, she must show, on a balance of probabilities, that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience. This is commonly referred to as the more stringent “complete inability test” or the “post 104 test”.
20The applicant believes that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She testified that she would “crumble to the demands” of meeting quotas from prospective employers and that if she attempted to engage in any employment that she would be “fired off the bat” due to her persistent pain. The applicant also stated, at paragraph 30 of her sworn affidavit, that she had been advised by her treating doctors that at present, she is not fit or able to work. The applicant clarified in cross examination, that the treating doctors she was referring to was Dr. Zahavi, her family doctor.
21Dr. Zahavi’s report dated November 3, 2017, addressed the applicant’s ongoing entitlement to the income replacement benefit and commented on whether the applicant met the “post 104 test”. In that report, Dr. Zahavi noted that the applicant continues to suffer from chronic pain and that he provides her with nerve block injections every three weeks. Dr. Zahavi concluded that from a purely physical perspective, the applicant would be able to perform sedentary duties. He deferred comment on the extent and prognosis of any mood disorder to Dr. Bajaj.
22In his report dated July 14, 2017, Dr. Bajaj diagnosis the applicant with major depressive disorder, however, he did not provide any opinion or analysis as to whether the applicant meet the “post 104 test”. Similarly, Dr. Pilowsky’s psychological reassessment reports dated January 26, 2017 and May 23, 2017, do not provide any analysis or opinion as to whether the applicant meets the “post 104 test”. Furthermore, neither Dr. Bajaj nor Dr. Pilowsky provided any detailed evidence about the level of the applicant’s impairments and functionality in terms of employment.
23Dr. Chauhan’s Addendum Report dated May 7, 2017, was completed nine months after her initial functional abilities evaluation of the applicant. Dr. Chauhan does not specifically address the “post 104 test” but states that the applicant still presents with multiple yellow flags with respect to her neck and lower back. Dr. Chauhan further states that the applicant’s issues with her neck and lower back are barriers to her recovery and affect her ability to return to her previous employment or any gainful employment at the time. Dr. Chauhan finally notes that the applicant’s education level does not allow for a wide variety of available jobs and concludes that her job demands are currently too heavy for her.
24Based on the above, the applicant has not satisfied me, on a balance of probabilities, that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. Although I acknowledge the applicant’s testimony with respect to her physical and psychological impairments, I find that her self-reports are not sufficient enough to persuade me on a balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training or experience. I also find that the medical opinions of her treating health practitioners fail to persuade me that she meets the “post 104” test.
25In addition to this, I note that the respondent is relying on the assessments of Dr. Moddel, neurologist, Dr. Baker, physiatrist and Dr. Saunders, psychologist, who all opined that the applicant did not meet the “post 104 test”. In conjunction with these assessments, the respondent also relies on the Functional Abilities Evaluation Report of Mr. Hartog dated February 17, 2017 and the Vocational Assessment and Transferable Skills Analysis of Ms. Pereira dated February 17, 2017.
26Ms. Pereira found that the applicant was employable in a number of occupations as a result of her education, training and experience including a customer and information services representative, a cashier, an accounting technician and a bookkeeper. The applicant had held prior employment at coffee shops, as a cashier, as a bank intern, as a customer service representative, as a bookkeeper, as a financial service coordinator and as a server. Ms. Pereira also noted that the occupation of a bookkeeper is a good option as the applicant has the training and experience, it is a sedentary occupation and the applicant indicated that she enjoys doing taxes. Ms. Pereira’s Labour Market Survey noted that there were a number of jobs postings in the Toronto and Oshawa area for the applicant’s possible employment categories.
27The jobs identified by Ms. Pereira were put to the applicant during cross examination. The applicant responded by indicating that she could not return to a “physical job”. When it was pointed out that a number of the jobs were not physical in nature, the applicant responded by stating that she would have to deal with people and that she did not want to do these jobs.
28Given the discussion above, I am not persuaded, on a balance of probabilities, that the applicant suffered from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
29Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that the proposed treatment plans are reasonable and necessary.
Medical benefit in the amount of $1,805.00 for physiotherapy services submitted on October 4, 2016
30This treatment plan proposes funding for 20 physical rehabilitation sessions, therapy of multiple body sites and biofreeze. The applicant submits that this treatment plan is reasonable and necessary as it provides the applicant with pain relief and improved function.
31The respondent submits that the treatment plan is not reasonable and necessary and relies on the findings of Dr. Moddel and Dr. Baker to support its position. In his report dated May 2, 2016, Dr. Moddel found that the applicant had a normal neurological examination and that there was no evidence of any neurological sequelae with respect to the accident. Dr. Moddel came to the same conclusion in a subsequent report dated October 24, 2016, wherein he specifically addressed this treatment plan.
32Dr. Baker’s report dated October 24, 2016, also specifically addressed this treatment plan. Dr. Baker concluded that the facility based therapy being requested was not reasonable and necessary. It was his opinion that the applicant could continue with a self-directed exercise program going forward.
33The respondent further submits that the clinical notes and records of chiropractor who submitted the disputed treatment plan, illustrate that the alleged pain relief that the treatment plan is providing to the applicant is short-lived and transitory in nature.
34I find that this treatment plan is reasonable and necessary. The applicant gave evidence that this treatment provided her with pain relief and improved function. Her testimony was supported by Dr. Doran (pain specialist) who assessed the applicant on September 6, 2016. His report noted that the applicant should continue with her physiotherapy, chiropractic care and massage as it afforded her with fairly good pain relief and improved function. In addition to this, Dr. Fern’s orthopedic assessment of July 20, 2016, concluded that the applicant would benefit from further treatment to actively strengthen her back and core. I prefer this evidence to that of the respondents and find this treatment plan to be reasonable and necessary as it provided the applicant with meaningful pain relief and improved function.
Medical benefit in the amount of $3,129.48 for Psychological Services
35This treatment plan proposes funding for 12 sessions of therapy, mental health and addictions, service planning, documentation, formal re-assessment and report, progress and discharge report, education material and the OCF-18 preparation.
36The applicant submits that the treatment plan is reasonable and necessary as it aims to resolve the applicant’s depression and posttraumatic stress disorder as well as assisting the applicant in utilizing pain management tools.
37The respondent submits that the treatment plan is not reasonable and necessary and relies on Dr. Saunders’ findings to support its position. Dr. Saunders conducted an insurer’s examination on January 6, 2017. In his report dated February 17, 2017, Dr. Saunders opined that the applicant did not meet the DSM-IV clinical criteria for impairment and that there was no evidence of an accident related psychological impairment requiring treatment. As a result, he concluded that the treatment plan was not reasonable and necessary.
38I find this treatment plan to be reasonable and necessary. First, I found the applicant’s testimony to be compelling in this regard. She explained how her psychological impairments interfere with various aspects of her life, including her ability to return to her pre-accident employment. The applicant’s evidence is also consistent with the evidence of her family doctor, Dr. Zahavi, and Dr. Pilowsky both of whom identified psychological concerns. Dr. Pilowsky also noted that the applicant’s impairments are disabling and affect her capacity to work. Dr. Pilowsky further opines that without therapy, the applicant is at a high risk of psychological decompression. Given this, I find the treatment plan has reasonable goals and is necessary component of the applicant’s rehabilitation strategy.
CONCLUSION
39For the reason outlined above, I find that:
I. The applicant is entitled to an income replacement benefit in the amount of $224.27 per week for the time period from March 10, 2017 to March 27, 2017. Interest is payable.
II. The applicant is not entitled to receive an income replacement benefit in the amount of $224.27 per week for the time period from March 27, 2017 to date.
III. The applicant is entitled to the medical benefits in dispute as they are reasonable and necessary. Interest is payable.
Released: February 5, 2019
Paul Gosio,
Adjudicator