Y.L.C. v. Gore Mutual Insurance Company, 2020 CanLII 12778

Citation: [Y.L.C.] vs. Gore Mutual Insurance Company, 2019 ONLAT 18-010499/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:

Y.L.C

Applicant

and

Gore Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Chloe Lester, Vice-Chair

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

David Raposo, Counsel

Heard in Writing:

July 29, 2019

OVERVIEW

1The applicant, YLC, was involved in a car accident on October 9, 2016. As a result, he alleges that he sustained physical and psychological injuries and that those injuries caused him to stop working.

2The applicant applied for chiropractic treatment and an income replacement benefit (“IRB”) from the respondent, Gore Mutual Insurance Company, in accordance with the Schedule.¹

3Gore denied the chiropractic treatment plan on the basis that it appeared the YLC’s physical injuries had resolved and, further, that facility-based treatment would not be beneficial. As for the IRB, Gore initially paid the benefit but suspended payment as of February 8, 2018 after YLC’s failure to comply with its s. 33 request.²

4The applicant disagreed and filed an application for dispute resolution with the Tribunal.³

BACKGROUND

5At the time of the accident, the applicant was a 60 year-old man who was riding his electric bike when it collided with a right-turning vehicle.

6The applicant attended the hospital and it was noted in the records that he was involved in a minor motor vehicle incident that caused a soft tissue injury of the right leg. The next day he went for a series of x-ray and CT scans that resulted in normal findings.⁴ The applicant was then later diagnosed with psychological impairments.

7As a result of the accident, the applicant claims he could no longer attend work as a Kitchen Helper at [a restaurant]. The respondent began paying IRB benefits based on the psychological condition of the applicant.

8The respondent conducted surveillance on the applicant and found that, for three days, specifically November 2-4, 2017, the applicant attended [a restaurant] for approximately 12 hours each day. The investigator could not view what the applicant was doing during those times other than, in two instances, the applicant emerged from the restaurant wearing an apron and, a few other times, entered or exited through the back door of the restaurant.

9In a letter dated February 8, 2018, Gore wrote to the applicant requesting that, pursuant to s. 33 of the Schedule, he fill out a Declaration of Post-Accident Income Form and, if he had earned income, to provide the relevant pay stubs and T4 Slips. The applicant was warned that failure to comply with this request could result in a suspension of benefits.

10The applicant returned the form, dated March 6, 2018, and claimed that he made $200 cash for working a total of 16 hours as a Kitchen Helper at [a restaurant] during the month of November 2017.

11Because the applicant failed to produce all the requested documentation, the IRBs were suspended as of February 8, 2018.⁵

12The respondent conducted a series of assessments, a psychological IE dated June 13, 2018, and a neurological IE dated September 12, 2018. The psychological IE reported that the applicant’s psychological condition had improved and that the doctor felt there would be no restrictions on the applicant in returning to work.⁶ The neurological IE assessor could not comment on whether the applicant could return to work based on the right leg being numb. The assessor recommended an MRI and EMG study of the right leg to determine a possible diagnosis. A referral for an MRI was made. The applicant eventually attended for the MRI and a subsequent neurological IE will take place in the future. The respondent, as of the date of the submissions, has not denied the benefit.

ISSUES IN DISPUTE

13The questions to be determined are:

(a) is the applicant entitled to a chiropractic treatment plan?

(b) is the applicant entitled to receive a weekly income replacement benefit from April 13, 2018 onward? and,

(c) is the applicant entitled to interest?

RESULTS

14I find the applicant:

(a) is entitled to the chiropractic treatment plan.

(b) is not entitled to an income replacement benefit

(c) is entitled to interest in accordance with s. 51 on the chiropractic treatment plan.

ANALYSIS

Is the applicant entitled to the chiropractic treatment plan?

15Under s. 15 of the Schedule, the respondent is obligated to pay for all reasonable and necessary medical benefits incurred because of injuries sustained in the accident. The terms reasonable and necessary are not defined in the Schedule. Nevertheless, it is common ground between the parties that some guiding principles to consider when determining if a benefit meets the test are the necessity of the treatment in relation to the injuries sustained in the accident, the reasonableness of the treatment’s goal, the ability to achieve that goal, and the proposed treatment’s cost.

16In this case, the applicant submitted a chiropractic treatment plan in the amount of $3,028.68 that was recommended by Alife Wellness. This treatment plan was denied by the respondent based on a s. 44 Insurer Examination (“IE”).

17The applicant alleges he found the chiropractic treatment to be helpful and relies on the clinical notes and records from Alife Integrative Wellness, his treating facility, to support his claim for entitlement.

18The respondent argues that the chiropractic treatment was denied based on a physiatry IE dated June 29, 2017. The assessor found that the applicant’s abilities during the testing were limited compared to what was observed when the applicant was dressing or when he removed his shoes. The assessor diagnosed the applicant with a likely mild concussion, whiplash and soft tissue injury to his right leg. The assessor did not find any evidence of an ongoing physical impairment and, based on his opinion, sending the applicant for more facility based would not be helpful.⁷

19At the time the treatment plan was recommended, the clinical notes and records from Alife Wellness⁸ expressed that the applicant was seeing improvements in his neck, shoulder, and hip. The applicant was still experiencing pain, issues while sleeping, and had still not reached a full range of motion.

20Around the time of the treatment plan, the clinical notes and records from the family doctor⁹ indicate that the applicant continued to complain of pain issues and was prescribed various medications in order to manage the pain. The applicant still complained that his physical activity continued to be significantly limited.

21The psychological IE report dated August 1, 2017¹⁰ reveals that, as a result of the accident, the applicant was diagnosed with a Major Depressive Disorder with an Unspecified Anxiety Disorder. This is important in relation to the chiropractic treatment plan because the report details how the ongoing headaches and pain complaints have functionally impaired the applicant and that has had an impact on his psychological condition. The report details how the applicant used to go out and that brought him pleasure in comparison to after the accident, where he reports a decrease in appetite, loss of energy and libido, a decrease in social interaction and activities of daily living.

22I find the treatment plan reasonable and necessary. The records from the treating facility had shown an improvement in the applicant’s range of motion and, since the applicant had not reached maximal medical recovery, I find the treatment plan reasonable and necessary. I understand that the respondent’s physiatry assessor concluded that the applicant no longer suffered from any ongoing impairments from the accident from a physical perspective, but that cannot be entirely accurate considering a few years later the applicant was referred to chronic pain clinic by his family doctor for exactly the same types of issues he complained of to that assessor. The goals listed in the treatment plan are reasonable considering the applicant had a decrease in his activities of daily living. The cost of the treatment plan and the hourly rates are in line with the Schedule. Therefore, on the balance of probabilities, I find the applicant has met his onus and he is entitled to the treatment plan.

Is the applicant entitled to a weekly income replacement benefit?

23The applicant alleges he stopped working because of the injuries he sustained in the car accident and, as a result, was paid IRBs. The applicant claims entitlement to an IRB in the amount of $317.10 per week from April 13, 2018 onward.

24The applicant submits he meets the test for entitlement to an IRB for both the pre and post-104 week periods because of his continued pain and psychological impairments. His previous experience only qualifies him for restaurant labourer type positions and, since he is not capable of that occupation, he also meets the entitlement for post-104 IRBs.

25The respondent denies entitlement to the IRB because the applicant has been cleared to return to work from both a physical and psychological perspective, and on the basis that there is insufficient evidence to support an entitlement to the benefit.

26In review of the evidence, I find I have no jurisdiction to deal with the merits of the IRB claim. I have no evidence that the respondent denied him the benefit. The applicant has been in a period of suspension for failure to comply with a s. 33 notice to produce financial documents. In review of the applicant’s submissions, he has not addressed the reason for his failure to comply with the request or whether the request was reasonable. Under the Schedule, I have no authority to overrule this decision by the respondent absent of evidence that the information requested was not reasonably required to determine entitlement to the benefit or that there was a reasonable explanation for why the applicant could not comply with the request.¹¹

CONCLUSION AND ORDER

27I find the applicant has met the test and entitled to the chiropractic treatment plan in the amount of $3,028.68 from Alife Wellness with interest, if incurred, in accordance with s. 51 of the Schedule.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
2. 2Respondent’s Brief Tab 11 – Explanation of Benefits letter dated June 3, 2018.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
4. 4Tab 1 Royal Victoria Regional Health Centre Records
5. 5Explanation of Benefits dated June 3, 2018
6. 6Psychological IE report of Dr. Boyce dated June 13, 2018
7. 7Respondent’s Brief Tab 7 Dr. Lipson report dated June 29, 2017
8. 8Applicant’s Brief Tab 5 – CNR’s Alife Wellness
9. 9Applicant’s submissions Tab 3 CNR – Dr. Kiss
10. 10Respondent’s Brief – Dr. Boyce psychological IE dated August 1, 2017
11. 11Section 33 (1.1) and Section 34