Tribunal File Number: 19-001613/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
[S.P.]
Applicant
and
Jevco
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: Aleyei Antonov
For the Respondent: Alexander Wilkinson
Claims Adjuster: Courtney Hancock
Hearing: In Writing and in Person: September 20, 2019, October 3, 4, 2019
OVERVIEW
1The applicant was involved in an automobile accident on October 18, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal -Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The issues in dispute were identified and agreed to as outlined in the application and response.
i. Is the applicant entitled to receive a weekly income replacement benefit in the amount of $178.16 per week for the period September 18, 2018 to date and ongoing?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for physiotherapy services, recommended by Dr. Vyvyen Le in a treatment plan submitted February 22, 2018, and denied by the respondent on February 28, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,661.32 for physiotherapy services, recommended by Dr. Chad Hefford in a treatment plan submitted December 13, 2017, and denied by the respondent on December 21, 2017?
iv. Is the applicant entitled to receive a medical benefit in the amount of $1,749.28 for physiotherapy services, recommended by Dr. Vyvyen Le in a treatment plan submitted May 2, 2018, and denied by the respondent on May 6, 2018?
v. Is the applicant entitled to receive a medical benefit in the amount of $1,018.00 for physiotherapy services, recommended by Dr. Chad Hefford in a treatment plan submitted July 9, 2018, and denied by the respondent on July 17, 2018?
vi. Is the applicant entitled to payments for the cost of examinations in the amount of $1,230.92 for an attendant care assessment, recommended by Dr. Vyvyen Le in a treatment plan submitted December 14, 2017, and denied by the respondent on December 21, 2017?
vii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Psychological Assessment, recommended by Dr. Shaul in a treatment plan submitted February 13, 2018, and denied by the respondent on February 20, 2018?
viii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,499.35 for a Functional Abilities Evaluation, recommended by Dr. Glenn Yu in a treatment plan submitted May 18, 2018, and denied by the respondent on May 24, 2018?
ix. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Chronic Pain Assessment, recommended by Dr. Grigory Karmy in a treatment plan submitted July 9, 2018, and denied by the respondent on July 17, 2018?
x. Is the applicant entitled to receive a payment in the amount of $87.19 for a disability certificate invoice completed by Prime Healthcare Inc. submitted on December 8, 2017, and denied on December 14, 2017?
xi. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Downsview Healthcare in a treatment plan submitted May 22, 2019, and denied by the respondent on June 4, 2019?
xii. Is the applicant entitled to costs?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
xiv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULTS
3The applicant is not entitled to receive a weekly income replacement benefit in the amount of $178.16 per week for the period September 18, 2018 to date, and ongoing.
4The applicant is not entitled to receive medical benefits for physiotherapy services.
5The applicant is not entitled to receive a medical benefit for an attendant care assessment.
6The applicant is not entitled to receive medical benefits for a psychological assessment, a functional abilities evaluation, a chronic pain assessment.
7The applicant is not entitled to receive payment for $87.19 for a disability certificate invoice.
8The applicant is not entitled to receive interest, costs, or an award.
BACKGROUND
9The Applicant was involved in a motor vehicle accident on October 18, 2017. She was in the front seat passenger side of the car when it was T- boned. There was no police or EMS attendance. Pictures of the vehicle the applicant was in at the time of the accident showed minor dent damages on the right fender and back left part of the car. The applicant claimed that she banged her head against the window and banged her right shoulder. This caused pain to occur down to her hips to her right knee area. She claimed the results of the accident also caused her mood to change. She has a lot of anxiety.
10The applicant did have pre-existing headaches and did have pre-existing neck pain.1
11Before the accident the applicant worked full time as a cashier at [a butcher shop], which job included stocking shelves and packing boxes. The job required her to stand for long periods of time. She went back to work three days after the accident but found the pain unbearable and was able to work only one day. The applicant asked her employer for accommodation and was given a stool. There was no support for her back, so she found that she couldn’t do her job. The applicant took a week off work due to the pain she was suffering2. Also, prior to her accident, the applicant worked as a cashier for a short period of time at a beauty salon (called [beauty salon]) but quit because of her pain. The applicant stopped working January 6, 2018.The applicant went on unemployment insurance on February 11, 2019.
12The applicant attended the [medical centre] on September 7, 2017, complaining about her neck pain.3
13The applicant claimed that she saw Dr. Rammo one week after the accident, but no medical records were produced to support the attendance.
14The applicant filed a disability certificate (OCF-3) dated December 7, 2017 which indicated that she was unable to perform the essential task of her employment within 104 weeks of the accident. The applicant reported that she could return to work on modified duties.
15The applicant saw Dr. Rammo on January 26, 2018.There was no indication in his report about the applicant reported head trauma or the issue of anxiety. An x-ray of the applicant’s back was taken, on February 5, 2018, showing no issues. The applicant ‘s evidence was that at her meeting with Dr. Rammo on May 1, 2018, she discussed her issue of anxiety and headaches, however there is no record in Dr. Rammo’s clinical notes of any discussions of anxiety or headaches at that meeting.
16The applicant’s next visit with Dr. Rammo was February 20, 2019. The clinical notes indicate that the applicant complained of hip pain for the first time. The applicant attended Life Mark for three sessions of physiotherapy in 2017. The applicant did not produce any progress reports on her physiotherapy sessions.
17The applicant failed to produce the clinical notes and records of treating physicians for the three years pre accident and the clinical notes and records of Prime Healthcare, the employment file from the [butcher shop] and the OHIP summary dating back three years pre-accident which the respondent requested.
18On April 18, 2018, the applicant attended an insurer’s examination (IE) by Dr. A. Kopyto, General Practitioner, as to whether the applicant’s injuries were within the Minor Injury Guidelines (MIG). In his IE report date May 1, 2018, Dr. Kopyto indicated that the applicant’s injuries were within the MIG. He also indicated that the applicant had uncomplicated strain of the neck and back. Dr. Kopyto noted that the applicant indicated that she did not sustain a head injury, but experienced pain in her neck and back, hours after the collision. He noted in his report that he found no objective impairment. The supplementary report of Dr. A Kopyto IE dated May 1, 2018, indicated that the applicant sustained a strain to her neck and back and found no objective impairment.4 Dr. Kopyto in his supplementary report dated May 29, 2018 indicated that the OCF-18 dated May 3, 2018, was not reasonable or necessary as there were no impairments.
19The Job Site Analysis Report dated July 9, 2018 by Pamela Paquette, Kinesiologist classified the applicant’s job as light work.5
20The IE report of Dr. M. Hershberg family doctor, dated September 14, 2018 indicated that the applicant reported being currently independent in completing all of her self care tasks, and performing all household tasks.6 The report also indicated that the applicant demonstrated the ability to resume performing essential and non essential tasks of her pre- accident.
21Dr. D. Prendergast, Psychologist, in his IE report dated September 14, 2018, indicated that that the applicant had no interest in any mental health services. He found that the applicant is not psychologically disabled from returning to work.7
22In his function abilities evaluation dated September 14, 2018, Dr. Brent Souter, Chiropractor, found that the applicant demonstrated the ability to perform the job demands of her pre-accident employment as a cashier, which was classified as requiring light strength demands.8
23The applicant gave birth to a baby girl on December 1, 2018.
24On January 31, 2019, the applicant saw her family doctor, Dr. Rammo, who prescribed Tylenol. The applicant continued to report back pain and shoulder pain. There were no notations about complaints about psychological or emotional issues in Dr. Rammo’s reports.
25Dr. G. Karmy, pain specialist in his report dated May 28, 2019, found that the applicant had chronic pain syndrome and recommended a multidisciplinary approach to include an active rehabilitation, with passive physical modalities, a psychological approach, and other medical interventions.9 He stated in his direct evidence that he felt that the applicant’s accident related injuries resulted in a substantial inability to engage in her pre-accident employment as a cashier.
26During cross- examination, Dr. Karmy made several admissions. First, he admitted many of his statements in his report were based on the applicant’s self reporting. Second, the applicant’s headaches were not severe, so they wouldn’t be a big limitation in her life before the accident. Third, he hadn’t read the reports of Doctors Prendergast, Hersberg and Souter, when he based his opinion on the applicant’s substantial inability to engage in pre-employment activities. Fourth reviewing those reports would have been helpful to him. Fifth, Dr. Karmy admitted that there was no mention in Dr. Rammo’s reports of headaches or hip pain.
27The respondent paid the applicant from January 12, 2018, to September 12, 2018 an IRB representing 36.8 weeks.
ANALYSIS
INCOME REPLACEMENT BENEFIT (IRB)
28I find that the applicant is not entitled to any further IRB based on the reasons set out below.
29An IRB is payable to an insured if the insured 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. An IRB is payable to an insured after the first 104 weeks of disability if the insured person is suffering a complete inability to engage in any employment or self employment for which he or she is reasonably suited by education, training, or experience.10
30The applicant has the onus of proof on a balance of probabilities, that she is entitled to income replacement benefits. Under the Schedule, the Tribunal must look at the issue of function ability, and not just pain suffered.11
31The applicant self reported that she still had back pain and shoulder pain and therefore could not go back to work. The applicant did not see her family doctor Dr. Rammo until three months after the accident and did not report to him about any head trauma, or headaches. The accident was a minor accident with very little damage done to the motor vehicle.
32The reports of Dr. Hersberg and Dr. Prendergast clearly indicate that the applicant can perform her pre-accident duties. I accept their reports over the report of Dr. Karmy who didn’t review the prior reports of Dr. Hersberg and Dr. Prendergast. Dr. Karmy’s report also was based mostly on the self reporting of the applicant. The fact that the accident was a very minor accident and the fact that the applicant didn’t see her family doctor for three months post accident, also leads me to the conclusion that she could continue with her pre-accident jobs.
MEDICAL BENEFITS
33I find that the applicant is not entitled to medical benefits for the reasons set out below.
34The applicant must prove that the medical benefits under section 15 of the Schedule are reasonable and necessary before they have to be paid by the respondent.
Chronic Pain Assessment
35The Tribunal has held that for chronic pain to be considered more than simply sequelae of soft tissue injuries it must be:
a. chronic pain syndrome or continuous in that the minor injury never healed and;
b. it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability.12
36There is no evidence before me to suggest that a further chronic pain assessment would assist the applicant in her recovery. Dr. Karmy has already assessed the applicant with chronic pain syndrome on the grounds that the applicant still has pain in her back and shoulders, more than six months after the accident. Again, his report was based on the self reporting of the applicant. Dr. Karmy also admitted on cross-examination that he was not qualified to render psychological diagnoses.
37The reports of Dr. Hersberg and Dr. Prendergast again speak to the functioning of the applicant as not being impaired as a result of the accident.
38There is not enough evidence before the Tribunal, to show that the pain is severe that it causes functional impairment or disability or that another pain assessment is reasonable and necessary, as required by s 15 of the Schedule.
Attendant Care assessment
39The IE report of Dr. M. Hershberg, Family Doctor, dated September 14, 2018, indicated that the applicant reported being currently independent in completing all of her self care tasks and performing all household tasks.
40I find that an attendant care assessment is not reasonable and necessary, as required by s 15 of the Schedule.
Psychological Assessment, Functional abilities assessment
41Dr. D. Prendergast, Psychologist, in his IE report dated September 14, 2018, indicated that that the applicant had no interest in any mental health services. He made a finding that the applicant is not psychologically disabled from returning to work. There were no notes in the applicant’s family doctor, Dr. Rammo relating to any psychological or emotional issues affecting the applicant.
Functional Abilities Assessment
42The applicant left her job at [the butcher shop]. This job had been classified as light work in The Job Site Analysis Report dated July 9, 2018 by Pamela Paquette, Kinesiologist.
43The IE report of Dr. M. Hershberg, Family Doctor, dated September 14, 2018, indicated that the applicant reported being currently independent in completing all of her self care tasks and performing all household tasks. The IE report of April 18, 2018, and the supplementary report of May 29, 2018 from Dr. Kopyto also indicated there were no impairments.
Physiotherapy Services
$87.19 FOR A DISABILTY CERTIFICATE INVOICE.
44There is no evidence put before me to show that this medical benefit is reasonable and necessary.
COSTS/ INTEREST/ AWARD
45I find that there is no evidence before me that the respondent has acted unreasonably, frivolously or in bad faith to justify an order of costs as required under Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. I therefore decline to make such an order.
46As no benefits were overdue, I find that there is no interest owing.
47I find that there is no award owing to the applicant as the respondent has not unreasonably withheld or delayed payments to the insured.
Released: February 27, 2020
Robert Watt
Adjudicator
Footnotes
- Clinical notes of Dr. Ghani Tab c-1 p4
- Applicant’s Brief of Documents Tab 1-OCF-1
- Respondent’s Brief of Documents Tab 18
- Respondent’s Brief of Documents Tab 10
- Ibid Tab 15
- Respondent’s Brief of Documents Tab 11 p5
- Respondent’s Brief of Documents Tab 12 p 4 6
- September 14, 2018 Functional Abilities Evaluation Respondent’s Brief tab 14
- Respondent’s Brief of Documents Tab C-4 p10
- Schedule sec 5 6
- Boateng and State Farm, Appeal order November 6, 2016 Brief of Authorities Tab 4
- Y.X.Y. v The Personal Insurance Company, 2017 CanLII 5915(Ont Lat) para 20