Citation: AJ vs. The Guarantee Company of North America, 2020 ONLAT 19-001321/AABS

Released Date: 04/06/2020 File Number: 19-001321/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:

A. J.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

John Groves, Counsel

For the Respondent:

Shawn Macdonald, Counsel

HEARD: In Writing

October 21, 2019

OVERVIEW

1The applicant, A.J. was involved in an automobile accident on November 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). A.J. was denied certain benefits by the respondent, The Guarantee Company of North America (“Guarantee”) and submitted an application to the Licence Appeal Tribunal (the “Tribunal”). Specifically, A.J. seeks funding for an income replacement benefit (“IRB”) and medical benefits.

2Guarantee is claiming a repayment of the IRB. Guarantee’s position is that it wrongly paid A.J. an IRB in 2017.

ISSUES

3The issues in dispute were identified and agreed to as follows:

a. Is A.J. entitled to receive a weekly income replacement benefit (“IRBs”) in the amount of $400.00 per week for the period from March 14, 2018 to date?

b. Is the medical benefit in the amount of $1,830.98 for physiotherapy services recommended by Kapiul Rajput, in a treatment plan dated June 2, 2017, denied on June 16, 2017, reasonable and necessary?

c. Is A.J. liable to repay Guarantee $1,975.64 in IRBs paid during the period from February 15, 2017 to June 19, 2017?

d. Is A.J. entitled to interest on any overdue payment of benefits?

4Additional issues were identified in the Case Conference Order. However, the parties were able to resolve these, and the issues listed above comprise the focus of this written hearing.

DISCUSSION

The clinical notes and records of the Family Physician

5Guarantee submits that A.J. has not complied with the Tribunal Order dated June 6, 2019. In the Order, Adjudicator Neilson noted the following timeline regarding the exchange of documents:

a. On consent, the parties agreed that:

i. the applicant shall provide the respondent with the following or proof of best efforts by July 8, 2019:

1. The complete clinical notes and records (“CNRs”) of Dr. Beverley Elder from November 30, 2016 to the present.

6Guarantee contends that A.J. did not produce the required updated CNRs. A second accident took place in March 2017. Guarantee submits that without the updated CNRs, it is difficult to determine whether the subject accident or the March 2017 accident caused or exacerbated any of A.J.’s injuries.

7A.J. submits that numerous requests were made to Dr. Elder, however, not all CNRs were received. A.J.’s position is that the current CNRs received provide enough information to support her pain complaints. Specifically, she claims that the current medical records confirm that the March 2017 accident did not exacerbate or cause any new injuries.

8A.J. submits that there may be further medical records that support that any injuries or impairments suffered are as a result of the subject accident. Although this may be the case, it is difficult for Guarantee to concede that the missing family physician CNRs will confirm that the March 2017 accident did not cause or exacerbate any of A.J.’s injuries.

9Despite this, Guarantee did not request a specific remedy, therefore, my finding will be based on the evidence put before me.

ANALYSIS

Entitlement to Income Replacement Benefit – March 14, 2018 to May 14, 2018

10I find that A.J. is not entitled to an IRB for the period of March 14, 2018 to May 14, 2018.

11The Disability Certificate (“OCF-3”), completed by the family physician, stated that A.J. met the test for an IRB because of the injuries she sustained in the car accident. On the balance of probabilities, it is reasonable to conclude that someone who is diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal the injuries. Based on the OCF-3 the anticipated duration that the impairments would prevent A.J. from working was for more than 12 weeks.

12A.J. attended a series of assessments by a healthcare professional retained by Guarantee. The assessor determined that at the time of the assessment, A.J. suffered from strains and sprains. The assessor concluded that A.J. did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. Consequently, Guarantee denied the IRBs in a letter to A.J. effective June 5, 2018.

13A.J. submits that she returned to work in January of 2017. There is no evidence to suggest that A.J. met the conditions for entitlement to an IRB between March 14, 2018 and May 14, 2018. Further, A.J. did not complete her application for an IRB until she submitted an OCF-3 on May 15, 2018. By virtue of s. 36(3) of the Schedule, A.J. is not entitlement to an IRB until the completed OCF-3 is submitted. Therefore, entitlement to the benefit can only begin on May 15, 2018 unless A.J. has a reasonable explanation for the delay in submitting the OCF-3.

14In a letter dated May 3, 2018, Guarantee notified A.J. that she would not be entitled to an IRB effective March 14, 2018 until she completed an OCF-3. The letter goes on to explain that any claim for withheld benefits would need to be accompanied by an explanation as to why there was a delay in providing the OCF-3.

15According to Guarantee, no explanation was provided until A.J.’s submissions, which indicated the delay in providing the OCF-3 was due to a lack of response from Dr. Elder. Guarantee submits that A.J. has provided no corroborative evidence that would support this explanation, i.e. copies of correspondence from A.J.’s counsel to Dr. Elder requesting the OCF-3 on a timely basis.

16Guarantee posits that the approximately one-year delay between Guarantee’s request for an explanation and A.J. providing an explanation unsupported by a lack of corroborative evidence is not reasonable. I agree. Therefore, A.J. is not entitled to an IRB for the time period of March 14 – May 14, 2018.

Entitlement to Income Replacement Benefit – June 5, 2018 to November 30, 2018

17I find that A.J. has satisfied her onus to establish that she suffered a substantial inability to perform the essential tasks of her employment for the disputed period of June 5, 2018 to November 30, 2018, during which she has not received any IRB.

18Guarantee notified A.J. in a letter dated May 3, 2018, that she is not entitled to an IRB due to non-compliance with s. 37 of the Schedule. Guarantee advised A.J. that for the period of March 14, 2018 ongoing, until A.J. complied with s. 37, she would not be entitled to an IRB payment. As a result of A.J. providing the OCF-3 dated May 15, 2018, Guarantee paid A.J. an IRB for the period of May 15, 2018 to June 4, 2018, terminating it on June 5, 2018.

19The termination of the IRB was based on an assessment¹ conducted by physiatrist Dr. Hosseini. In his report, Dr. Hosseini opined that A.J. presented with “reduction in her lumbar spine ranges of motion secondary to pain”. Dr. Hosseini reports that A.J.’s reported complaints do not correlate with the objective findings, that appears to be “significant pain behaviour and potential hurt v. harm behaviour”. Dr. Hosseini concluded that A.J. does not suffer a substantial inability to perform the essential tasks of her employment as a result of the soft tissue injuries sustained in the subject accident.

20Although Guarantee is relying on this report, I find that Dr. Hosseini’s report is flawed. I could not find commentary on any testing that would reflect A.J.’s workload demands which are described as including operating heavy machinery and heavy lifting duties. Thus, Dr. Hosseini’s report does not inform the reader of A.J.’s ability to perform the essential tasks of her pre-accident employment. Therefore, I place little weight on Dr. Hosseini’s report.

21Although I found above that Guarantee did not provide persuasive evidence to support their denial, the onus lies with A.J. to prove her substantial inability to perform the essential tasks of her employment. I find that A.J. has met this onus.

22I find that despite A.J.’s efforts to return to both her full-time employment and part time employment, she has not been able to do so. There has been a significant change in her post-accident ability to perform the essential tasks of her employment. To date, A.J. has not been able to return to her full-time duties with [a distillation facility], and despite her attempts, has not been able to return to her part-time position as a shelf-stocker with [a department store]. I find this evidence supports the entitlement to IRB for the period of June 5, 2018 to November 30, 2018.

23I find A.J.’s reports of pain complaints to be in line with the OCF-3 that indicated a prognosis of a greater than 12-week recovery period for her accident-related injuries.

24Therefore, based on the balance of probabilities, A.J. is entitled to an IRB in the weekly amount paid prior to the June 4, 2018 date of termination from June 5, 2018 to November 30, 2018.

Entitlement to Income Replacement Benefit – December 1, 2018 - ongoing

25Although I have found that A.J. met the test applicable for the first 104 weeks following the accident, on the balance of probabilities, she has not met the more stringent post-104-week IRB test found in s. 6(2)(b) of the Schedule. This test requires A.J. to suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

26A.J. has not provided me with evidence that she meets the requirements of the post-104 test. As such, she is not entitled to an IRB benefit after November 30, 2018.

Notice of Repayment of Income Replacement Benefit

27Pursuant to s. 52(2)(a) of the Schedule, Guarantee is required to provide A.J. with notice of the amount she is required to repay.

28I find that this notice was given by Guarantee in a letter to A.J. dated February 15, 2018. The letter clearly sets out the amount to be repaid and requests repayment.

29Section 52(3) of the Schedule also provides that if the notice of the amount that a person is required to repay is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice is given ceases to be liable to repay the amount unless the benefit was originally paid as a result of wilful representation or fraud.

30I find that the notice given on February 15, 2018 was within 12 months of the February 15, 2017 payment and that A.J. is liable to repay the amount claimed.

Repayment of Income Replacement Benefit

31A.J. is liable to repay to the applicant IRBs in the amount of $1,975.64 plus interest calculated in accordance with s. 52(5) of the Schedule for the following reasons:

a. A.J. returned to work in January 2017;

b. Guarantee provided A.J. with notice of the number of IRBs that are required to be repaid on February 15, 2018;

c. In accordance with s. 52(3), the notice was provided within 12 months after the payment of the amount that is to be repaid as the claim for repayment is for benefits paid to A.J. between February 15, 2017 to June 19, 2017;

d. The Schedule does not limit Guarantee to recovering the repayment by collecting the amount by reducing each subsequent payment of IRBs;

e. I have no authority to refuse to grant the order for repayment;

f. I find that Guarantee is entitled under the Schedule to seek repayment of IRBs;

g. The Schedule sets outs circumstances where a person is liable to repay benefits to an insurer; and

h. Section 52(1)(a) provides that a person is liable to repay to an insurer any IRB that was paid as a result of an error on the part of the insurer under the Schedule.

32For the reasons given above, I find that A.J. is liable to repay IRBs to Guarantee under s. 52(1)(a).

33Guarantee submits that A.J. is liable to repay the amount because she had returned to work during the period of February 15, 2017 to June 19, 2017.

34In its February 15, 2018 letter to A.J. asking for the repayment of benefits, Guarantee makes the request “in accordance with s. 52(1)(a) of the Schedule”. This subsection provides for repayment of a benefit that is paid to a person as a result of an error or as a result of wilful misrepresentation or fraud.

35Guarantee relied on its accountant report² from Matson, Driscoll & Damico (“MDD”) to determine the amount of IRB that was repayable. MDD initially calculated the repayment amount to be $2,899.71. In its February 15, 2018 letter, Guarantee advised A.J. that pursuant to s. 52 of the Schedule, notice of the overpayment was not provided within 12 months of when the original payment was made. As such, the repayment amount was recalculated to be $1,975.64.

36A.J. does not provide a responding accounting report to refute the calculation made by MDD. In response, A.J. submits that the “methodology used in reducing A.J.’s IRB calculation was incorrect…”. Despite this claim, A.J. does not provide any objective evidence of how or why the methodology was incorrect or even why she feels the methodology was incorrect.

37As such, I find no reason not to give full weight to the accountant report relied on by Guarantee and find that the full amount of IRB repayment is payable by A.J. Guarantee did not provide any submissions on whether interest is being claimed on the repayment amount, therefore, my determination is that the repayable amount of IRB is $1,975.64.

Medical Benefit – Physiotherapy Treatment Plan in the amount of $1,830.98

38Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.³

39I find on the evidence that A.J. is entitled to the physiotherapy treatment plan. I find that her reports of pain are consistent, credible and ongoing since the accident and that she continues to have functional impairment. I am persuaded that A.J.’s report that the treatment has proven beneficial establishes that continued physiotherapy treatment is reasonable and necessary.

40While A.J. was removed from the Minor Injury Guideline by Guarantee on the basis of her psychological impairments, I find her physical impairments are well-documented throughout the file. I find A.J.’s complaints of pain, specifically in her neck and back are consistent and have continuously affected her day to day function, especially at work, since the subject accident. Her attendance at treatment and her complaints to her providers have been consistent and relatively unchanged despite Guarantee’s position that her physical impairments were treatable within the Minor Injury Guideline. She has followed up with referrals and participated in testing, but her pain persists over two years following the accident.

41Guarantee’s denial of the treatment plan was based on a report⁴ of General Physician, Dr. Khaled, who opined that A.J.’s injuries could be treated within the Minor Injury Guideline and that the treatment was not reasonable and necessary.

42A.J. claims the treatment plan is reasonable and necessary as the therapies recommended reduce her pain from the injuries. She has tried various modalities to improve her condition, including active and passive therapies, but the physiotherapy treatment has provided her with beneficial relief, which enables her to function in her day to day life. A.J. argues that the treatment plan is reasonable and necessary, as pain reduction is a reasonable treatment goal, the treatment goals are being met, and the cost is reasonable.

43The goal of the physiotherapy treatment plan is to reduce pain, increase strength and increase range of motion, with the functional goals of returning to activities of normal living, return to modified work activities and pre-accident work activities. The progress would be re-assessed at some point during the treatment plan. The treatment plan contained additional information which indicated that A.J. “has improved a lot after sessions and range of motion for all affected joints is almost back to normal”.⁵ A.J. has returned to her full-time job on modified hours and duties. However, she made three attempts to return to her part-time position but was unable to continue due to pain and the requirements of the position. She is still experiencing regular pain.

44Pain relief, even on a temporary basis, is enough to qualify passive treatment as reasonable and necessary as long as it maintains or increases functionality. Functionality can have different meanings, for example, increasing or maintaining range of motion, activities of daily living, workplace tasks/attendance and/or the ability to sleep. Passive treatment does not necessarily always have to be combined with other modalities, as long as other modalities have been explored. The cost of the treatment needs to be taken into consideration with the likelihood of success.

45In this case, A.J. explored various modalities to improve the symptoms caused by the injuries sustained in the car accident. The treatment in question allowed her to maintain adequate workplace attendance and increased her ability to perform household chores and daily activities. The treatment was not only recommended by her treating physiotherapist but also by her family doctor.

46In addition, the cost of the treatment plan is low at just over $1,800.00 for a 7-week period in order for A.J. to function in her daily life. I must stress the importance of producing the treatment plans as evidence in consideration of the goals, treatment and overall cost. All factors that need to be taken into consideration when assessing the reasonableness and necessity of a treatment plan.

47I put less weight on Dr. Khaled’s report, as it focused on the concern that the treatment does not provide significant or prolonged symptomatic relief or functional restoration. The report failed to address whether the proposed treatment plan, which includes therapy services and frequency, coincides with the injuries sustained in the car accident, whether the treatment goals coincides with the proposed treatment and likelihood of success in relation to cost. All of these are factors that assist in determining whether a treatment plan is reasonable and necessary.

48Accordingly, I find A.J. has satisfied her onus to persuade me that the treatment plan is reasonable and necessary.

49For these reasons, I find the physiotherapy treatment plan in the amount of $1,830.98 to be reasonable and necessary and payable.

CONCLUSION

50For the reasons stated above, I find the following:

a. A.J. is entitled to an IRB for the period of June 5, 2018 to November 30, 2018, including interest, pursuant to s. 51 of the Schedule;

b. A.J. is not entitled to an IRB for the period of December 1, 2018 ongoing;

c. A.J. is required to repay the IRB in the amount of $1,975.64; and

d. A.J is entitled to the physiotherapy treatment plan, including interest, pursuant to s. 51 of the Schedule.

Released: April 7, 2020

__________________________

Derek Grant

Adjudicator

Footnotes

1. 1Physiatry Examination Report dated May 25, 2018
2. 2Matson Driscoll & Damico (“MDD”) Accounting Report dated February 2, 2018.
3. 3Scarlett v. Belair, 2015 ONSC 3635.
4. 4General Physician Report dated July 11, 2019
5. 5Respondent’s Submissions at Tab G