H. M. L. v. Northbridge Personal Insurance Corporation, 2020 CanLII 30400

Citation: H. M. L. vs. Northbridge Personal Insurance Corporation, 2020 ONLAT 19-000375/AABS

Released Date: 03/26/2020

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:

[H. M. L.]

Applicant

and

Northbridge Personal Insurance Corporation

Respondent

DECISION

VICE CHAIR: Susan Mather

APPEARANCES:

For the Applicant: [H. M. L.], Applicant Yu Jiang, Paralegal

For the Respondent: Linda Kiley, Counsel

HEARD: In Writing November 25, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, HML, was involved in an automobile accident on June 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). HML was denied certain benefits by the respondent (“Northbridge”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2HML received income replacement benefits from June 15, 2017 to June 27, 2018. The parties disagree with respect to whether injuries HML suffered in the accident prevent her from returning to work and whether she requires a chronic pain assessment and ongoing physiotherapy.

3Following two case conferences and a motion hearing, the parties agreed that the application be heard in writing.

ISSUES

4The issues to be decided by me are as follows:

(i) Is the applicant entitled to an income replacement benefit (IRB) in the amount of $400.00 per week for the period of July 28, 2018 to date and ongoing?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,000.00 for a chronic pain assessment recommended by EZ Physio in a treatment plan submitted on January 29, 2018 and denied on July 23, 2018?

(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,861.08 for physical therapy treatment recommended by EZ Physio in a treatment plan submitted on March 21, 2018, and denied on July 23, 2018?

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

RESULT

5The applicant is entitled to the following:

(i) IRBs from June 28, 2018 until 104 weeks after the accident in the amount of $322.30 per week less any Canada Pension Plan Disability Benefits she may become entitled to for the period up to 104 weeks after the accident;

(ii) The medical benefit in dispute for a chronic pain assessment. There is no evidence this expense has been incurred by the applicant and I am not satisfied that that the expense was not incurred because Northbridge unreasonably withheld or delayed payment of a benefit in respect of the expense.¹ The expense is payable if it has been incurred.

(iii) The medical benefit in dispute for physiotherapy. There is no evidence this expense has been incurred by the applicant and I am not satisfied that the expense was not incurred because Northbridge unreasonably withheld or delayed payment of a benefit in reasons of the expense. The expense is payable if it has been incurred.

(iv) Interest on any overdue benefits as provided for in Section 51(4) of the Schedule.

6The applicant is not entitled to IRBs after her first 104 weeks of disability.

Applicant’s Injuries

7The applicant was proceeding through an intersection at the time of the accident when a left-turning vehicle collided with the front of her vehicle. She went by ambulance to hospital following the accident complaining of pain in her wrists neck, chest, shoulders and back.²

8Medical imaging indicated that there was a likely left radial styloid fracture her left wrist.³ Her left wrist was put into a cast for 7 weeks as a precaution. An August 30, 2017 bone scan confirmed that there was no evidence of a fracture of the applicant’s wrist/scaphoid.⁴

9The applicant saw her family physician four days after the accident and the family doctor’s clinical notes and records (CNRs) chronicle the applicant’s physical condition in the weeks and months following the accident.⁵ The CNRs of the family physician document that she was assessed as having post traumatic stress syndrome (PTSD), depression, multiple location pain and dizziness following the accident.

10The CNRs of the family doctor confirm that the applicant continued to suffer psychological and pain issues into the spring of 2018 and continued to take medication to deal with her pain.

11In a report dated August 24, 2017 a psychologist diagnosed the applicant with adjustment disorder, Mild Cognitive Disorder and a Specific Phobia (travel).⁶ A psychiatrist to whom the applicant was referred by her family physician diagnosed the applicant with post-traumatic stress disorder, major depressive disorder and chronic pain.⁷

12In July 2018, the applicant was referred by her family physician to Dr. Mak, rheumatologist.⁸ Dr. Mak’s CNRs document that the applicant had a moderate restriction of her lumbar spine and marked tenderness at the arms, hips and hands. He found that the applicant’s clinical history was consistent with chronic central pain sensitization (fibromyalgia) with onset after the accident. The rheumatologist’s reporting letter to the family physician indicates that he does not follow patients with chronic pain syndrome. He referred the applicant’s care back to her family physician and psychiatrist.

13The CNRs of the family doctor indicate that the applicant had ongoing sleep and pain issues into April 2019. As of April 2019, the applicant was prescribed Effexor, Desryrel, Prazosin and Gabapentin for pain.

INCOME REPLACEMENT BENEFITS

14The Schedule requires an insurer to pay an IRB to an insured who sustains an impairment as a result of the accident if the insured was employed at the time of the accident and, as a result of and within 104 weeks after the accident the insured suffer a substantial inability to perform the essential tasks of that employment.⁹

15The Schedule also provides that an insurer is not required to pay an IRB for the first week of disability, or after the first 104 weeks, unless, as a result of the accident, the insured 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

16The calculation of the weekly benefit an insured is entitled to is set out in the Schedule.¹¹

17Northbridge paid IRBs to the applicant in the amount of $322.30 per week commencing one week after the accident and ceasing on July 28, 2018. The payment was based on 70% of her pre-accident employment income from [a blinds manufacturer]. The applicant claims ongoing IRBs from June 29, 2018 to date in the amount of $400.00.per week. She has not, however, provided any evidence to support a weekly benefit of more than the $332.30 per week. She did not file any reply submissions disputing Northbridge’s calculation of the amount of any benefit found to be payable. For these reasons I am satisfied that Northbridge correctly calculated the IRB at $332.30 per week.

18Northbridge submits that the applicant applied for a Canada Pension Plan Disability Benefit which had not been determined by the time of the hearing. The applicant does not dispute this. The Schedule provides that an insurer is entitled to deduct Canada Pension Plan Disability Benefits in the calculation of IRBs.¹²

19I must first decide if the applicant has established on the balance of probabilities that she is entitled to IRBs from one week after the accident until 104 weeks after the accident because she was substantially unable to perform the essential tasks of her employment during that time. If I am satisfied that she was unable to complete the essential tasks of her employment for the full 104 weeks after the accident I must consider whether after 104 weeks she was suffering a complete inability to engage in any employment or self-employment for which she is reasonably suited by her education, training and experience.

First 104 Weeks

20For the reasons provided below I am satisfied on the balance of probabilities that the applicant remained unable to complete the essential tasks of her pre-accident employment for the full 104 weeks after the accident.

21Prior to the accident, the applicant was employed full-time as a packer at a blinds manufacturer. Her duties included packing curtains into boxes, putting hooks on curtains and ironing curtains.¹³ She had been employed in this position for seven months.

22The applicant’s pre-accident job is classified as “heavy work” requiring frequent and constant heavy lifting.¹⁴

23The applicant relies on the CNRs of her family physician, a psychologist, a psychiatrist and EZ Physio to support her claim that she suffered an inability to complete the essential tasks of her employment for the full 104 weeks after the accident. She argues that ongoing chronic pain and psychological issues prevented her from returning to the work she did before the accident. The CNRs of her family doctor, psychologist and psychiatrist confirm pain and sleep issues persisted through April 2019.

24The CNRs of her family physician include the reporting letter from Dr. Mak the rheumatologist who assessed her in July 2018 and found that her “clinical history and findings were consistent with chronic central pain sensitization disorder (fibro-myalgia) with onset after her MVA”.¹⁵

25The CNRs of the applicant’s family physician document that, in the two years preceding the accident, the applicant frequently complained of pain issues to her family physician. Northbridge submits that the applicant’s ongoing pain issues are a pre-existing condition.

26I have reviewed the family physician’s CNRs and determined that the applicant switched jobs in late 2016 because the previous work was too heavy and causing her pain. Once she switched jobs, there is only one further notation (four months prior to the accident) of pain in her wrists and numbness. For that reason, I do not accept Northbridge’s contention that the applicant’s pain that she reported after the accident is a pre-existing condition not caused by the accident.

27Northbridge relies on the multidisciplinary report dated July 19, 2018 to support its decision to terminate the IRB. This report does not persuade me that the applicant’s chronic pain and psychological issues were sufficiently resolved by July 28, 2018 that she could return to work full time in a job classified as “heavy”. I find no specific reference in any of the reports relied upon by Northbridge to the assessment of Dr. Mak or the diagnosis of chronic pain by her psychiatrist.¹⁶

28The physiatrist who contributed to the report concluded that the applicant was safe to resume all aspects of her life that she engaged in prior to the accident without any physical restrictions of functional limitations. He did not address the diagnosis of chronic pain, PTSD or adjustment disorder and the “heavy” nature of the work.

29The psychologist who contributed to the report also concluded that the applicant was not suffering a substantial inability to perform the essential tasks of her pre-accident employment. She did not address the effect that chronic pain might have on her ability to return to heavy work. She recommended more psychological treatment.

30The neurologist who contributed to the report could not identify any objective evidence of ongoing musculoskeletal or neurological related injury or impairment. He acknowledged that the applicant presented in a pain focused and depressed manner. His report did not consider how these conditions might affect her ability to return to heavy work.

31For the reasons provided above I am satisfied on the balance of probabilities that the applicant was unable to return to the “heavy” type of work she was engaged in before the accident for 104 weeks after the date of the accident.

After 104 weeks

32The applicant submits that her pain and psychological issues make it impossible for her to maintain steady employment in a competitive work force because her past work experience qualifies her for only restaurant and manufacturing jobs. She argues that these types of jobs require prolonged standing, upper body and limb coordination as well as concentration and focus.

33While I am satisfied that she is not able to return to “heavy” work, the applicant has not satisfied me on the balance of probabilities that she suffers from a complete inability to engage in any employment for which she is reasonably suited by way of education, training or experience.

34The applicant provided little evidence of her level of education or her work history aside from her job at the blinds manufacturer and her job as a waitress. Northbridge’s evidence is that the applicant has training as an esthetician although there is no evidence she has ever worked as one.

35The testing done by Northbridge’s kinesiologist demonstrates academic levels at 2.8 for reading, 2 for comprehension and 2.6 for spelling. Her math is at a grade 6.3 level. English is her second language. Northbridge’s kinesiologist concluded that her occupational profile is limited to jobs in the “areas of unskilled and usually manual labour”. Suggested jobs for a person of the applicant’s skill level are retail sales, ticket taker/usher, beauty salon attendant and esthetician.

36Northbridge relies on video surveillance of the applicant taken in May and June of 2019 to show that the applicant is able to engage in employment for which she is reasonably suited. The video surveillance evidence from May and June 2019 shows the applicant driving a car, walking a dog, playing some badminton and ping-pong and grocery shopping.

37Northbridge also asks me to consider the fact that the applicant went to China in the spring of 2018 as evidence that she is able to return to work. I give little weight to this evidence because the CNRs of the family physician indicate that the trip was to take the remains of her mother, who died in March 2018, back to China. I see no correlation between her ability to undertake a long plane trip and her ability to engage in employment for which she is suited.

38I decline the applicant’s claim for IRBs after 104 weeks following the accident because there is no evidence that she has applied for any jobs or made any attempts to work since the accident. The video surveillance evidence shows that the applicant is mobile enough to get out of the house, go shopping, play some ping-pong and badminton and walk her dog. It suggests to me that the applicant has some stamina and may be capable of at least part-time work. She has not provided any medical opinion to support her claim that she is unable to work at any job that she is reasonably suited for by reason of her training and experience.

39For these reasons, I find that the applicant is not entitled to IRBs more than 104 weeks after the date of the accident.

40The Schedule requires an insurer to pay medical benefits to an insured who sustains an impairment as a result of an accident. It provides that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident including physiotherapy services and assessments.¹⁷

41For the reasons provided below, I am satisfied that the treatment plan for a chronic pain assessment proposed by Dr. K. Eflala on January 29, 2018 is reasonable and necessary.¹⁸ Dr. Elfala proposed a chronic pain assessment to help the applicant return to her activities of daily living and to modified work assignments or her work before the accident.

42As of January 29, 2018, the applicant was still complaining regularly to her family physician about pain. The CNRs of her family physician dated March 5, 2018 indicates that the applicant’s pain had not improved. The impression of the family physician was that she was suffering from chronic pain.¹⁹ The April 8, 2018 CNRs of the family physician again assesses the applicant as having chronic pain.

43The April 25, 2018 CNRs of the applicant’s psychiatrist confirm that the applicant continued to suffer pain and he assessed the applicant as having chronic pain.²⁰

44The family physician referred the applicant to a rheumatologist in April 2018 for a consultation on her chronic pain.²¹ The rheumatologist also was of the opinion that the applicant’s clinical history was consistent with chronic central pain sensitization (fibromyalgia) with onset after the accident.²²

45Northbridge relies on the opinion of its psychologist, Dr. Mandel, to support its decision to deny the treatment plan. I have reviewed the July 19, 2018 report of Dr. Mandel and I am unable to find any determination by Dr. Mandel in the report that funding a chronic pain assessment was not a reasonable and necessary expense resulting from the accident. In fact, Dr. Mandel conducted a Pain Patient Profile Assessment (P3) and which is designed to identify patients who are experience emotional distress associated with primary complaints of pain. It is designed for patient suffering pain as a result of physical trauma. The applicant scored above average on all three sections of the test.

46Northbridge also relies on a Med/Rehab Neurological Addendum report of Dr. Farhadi dated September 24, 2019 to support its denial of this treatment plan.²³ I have reviewed this report of Dr. Farhadi and while he states that he did not find the treatment plan to be reasonable and necessary, there is no indication in his report that he gave any consideration to the fact that the applicant has been assessed as having chronic pain.

47On the basis of the medical evidence diagnosing chronic pain, I am satisfied that a chronic pain assessment is reasonable and necessary.

48For the reasons provided above, I am satisfied that the treatment plan for a chronic pain assessment is reasonable and necessary. There is no evidence that the applicant incurred the expense for this treatment plan and for that reason I do not order that it be paid.²⁴

49The March 21, 2018 treatment plan for physiotherapy proposes²⁵ physiotherapy, active physiotherapy and massage therapy for pain reduction, increase in strength, increase in range of motion, and to improve sleep and reduce headaches. The treatment plan indicates that the applicant had achieved some overall improvement but that her condition was re-aggravated due to her emotional stress and loss of sleep due to her mother’s illness and death on March 12, 2018.

50For the reasons provided below, I am satisfied on the balance of probabilities that this treatment plan is reasonable and necessary.

51The CNRs of the family physician show that she referred the applicant for further physiotherapy after Northbridge denied this treatment plan.²⁶ Northbridge states that it denied this treatment plan based on the reports of Dr. Oshidaro dated August 23, 2017 and September 17, 2017. I give little weight to these reports as they were done at least six months before the treatment plan in issue was submitted.

52Northbridge also relies on the examinations of the applicant by a physiatrist and a neurologist. The opinion of the physiatrist was that, from a physical medicine and musculoskeletal point of view, the applicant had made a full recovery and the treatment plan was not medical reasonable and necessary.²⁷

53The opinion of the neurologist was that the applicant did not show any evidence of any ongoing musculoskeletal or neurological accident related injury or impairment and for that reason the treatment plan was not reasonable and necessary.

54Neither the neurologist or the physiatrist gave any consideration as to whether further physiotherapy might be helpful in treating the applicant’s chronic pain.

55I am satisfied that this treatment plan was reasonable and necessary based on the recommendations of Dr. R. Tavares, chiropractor, in his February 2018 Functional Abilities Assessment and the recommendation of the applicant’s family physician on June 1, 2018 that the applicant continue with physiotherapy.²⁸ I have also taken into consideration the surveillance evidence that the applicant was still attending at EZ Physio in 2019 after funding had ceased.

56I have no evidence that the expense for this treatment plan was incurred by the applicant and for that reason I do not order that it be paid.

APPLICANT’S CREDIBILITY

57Northbridge submits that the video surveillance of the applicant and the fact that she took a trip to China in March 2018 raises the issue of the applicant’s credibility. It submits that little weight can be attributed to her self-reports when there is insufficient medical evidence to overcome her credibility issues.

58While the video surveillance shows the applicant being active on trips outside of her home, it does not provide evidence that the applicant was not experiencing any pain as she participated in these activities. It also does not provide evidence that contradicts the self-reports she made to the various physicians and therapists who assessed her.

59This case is distinguishable on the facts from the case of Applicant (V.T.) and Wawanesa relied on by the respondent to show that video surveillance may be used to dispute credibility.²⁹ In Applicant (V.T.) and Wawanesa, the video evidence confirmed that the applicant had returned to work and other activities, contrary to what he reported to the physicians who assessed him. In this case, there is no evidence that the applicant’s self-reports to her treatment providers were misleading.

INTEREST ON OVERDUE BENEFITS

60The Schedule requires an insurer to pay interest on overdue benefits at the rate at the rate set out in the Schedule. The applicant claims 1% compound interest. This is the interest rate specified in the Schedule for overdue payments of benefits.³⁰ This rate, however is not applicable to disputed benefits that are ordered to be paid by the Tribunal.

61I find that the applicant is entitled to interest as provided for in s. 51(4) of the Schedule. This subsection provides for interest payments in cases where an insured’s entitlement to statutory accident benefits or the amount of a statutory benefit to which an insured is entitled is in dispute.

62If the parties are unable to agree on the amount of interest owing to the applicant, the parties shall contact the Tribunal.³¹

ORDER

63For the reasons provided above, I order:

(i) The applicant is entitled to IRBs for the period up to 104 weeks after the accident.

(ii) The applicant is not entitled to IRBs for more than 104 weeks after the accident.

(iii) The applicant is entitled to the treatment plan dated January 29, 2018 for a chronic pain assessment as I found it to be reasonable and necessary.

(iv) The applicant is entitled to the treatment plan dated March 21, 2018 for physiotherapy as I found it to be reasonable and necessary,

(v) The applicant is entitled to interest on any overdue benefits in accordance with s. 51(4) of the Schedule.

Released: March 26, 2020

__________________________

Susan Mather

Vice Chair

Footnotes

1. 1S.3(8) of the Schedule allows me to deem an expense to have been incurred if I find that if was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense.
2. 2Tab 2, applicant’s documents, Records from [a hospital]
3. 3Tab 2, applicant’s documents, Records from [a hospital] (Page 20)
4. 4Tab 6, Northbridge’s documents, Bone Scan dated August 30, 2017
5. 5Tab 4, applicant’s documents, CNRs of family physician
6. 6Tab 10, applicant’s documents
7. 7Tab 6, applicant’s documents, CNRs of psychiatrist
8. 8Page 17, Tab 4B applicant’s documents, CNRs of family doctor
9. 9S. 5(1)[1][i] of O. Reg. 34/10
10. 10S. 6(1), 6(2) of O. Reg. 34/10
11. 11S. 7 of O. Reg. 34/10
12. 12S. 7(1) of O. reg. 34/10
13. 13In her submission, the applicant claims to have been working two jobs at the time of the accident. There is no evidence to support this claim. Northbridge points out in its response that the applicant had terminated her job as a part-time server in March 2017. The applicant does not dispute Northbridge’s claim.
14. 14Tab 32, Northbridge’s documents, Physical Demands Analysis by kinesiologist, T. Blazevic.
15. 15Tab 4B, applicants documents, page 13
16. 16Tab 6, applicants documents, page 8
17. 17S. 15(1) of O. Reg. 34/10
18. 18Tab 3, applicant’s documents, page 166
19. 19Tab 4B applicant’s documents, page 2
20. 20Tab 6, applicants documents, page 8
21. 21Tab 4b, applicant’s documents, page 11
22. 22Tab 4b, applicant’s documents, page 13
23. 23Tab 46, Northbridge’s documents, p.380-386.
24. 24Section 15(1) of O. Reg. 34/10 requires that an expense be incurred before it becomes payable except in certain circumstances which are not applicable in this case.
25. 25Tab 3, applicant’s documents, page 101
26. 26Tab 4, applicant’s documents, page 11, June 1, 2018 referral for physiotherapy in the quantity recommended by the physiotherapist
27. 27Tab 44, Northbridge’s documents, page 395
28. 28Tab 3, applicant’s documents, page 205
29. 292018 CanLII 13146
30. 30S. 51(3). O. Reg. 34/10
31. 31The parties should request the Tribunal case management officer for this case to schedule a telephone conference for the purposes of scheduling a hearing to determine the amount of interest owing.