Released Date: 05/04/2020 File Number: 19-003521/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.S.]
Applicant
and
Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: [G.S.], Applicant
For the Respondent: Jason Kerr/Saly Botelho, Counsel Cathy Spong Claims Adjuster
Interpreter [G.G.], Punjabi Language
Court Reporter: [B.C.]
HEARD: In-Person: January 31, 2020
OVERVIEW
1The applicant was involved in an automobile accident on August 23, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2The applicant did not have counsel at the hearing, nor did the applicant file any medical briefs to support his application.
3The issues in dispute were identified and agreed to as follows:
i. Is the applicant entitled to receive a weekly income replacement benefit (“IRB”) for the period from September 16, 2018 to date and ongoing to-date and ongoing?
ii. What is the quantum of the weekly IRB in dispute?
iii. Is the applicant entitled to receive medical benefits recommended by Active Life Wellness Centre as follows;
a. $3,332.62 for chiropractic services in a treatment plan submitted on February 26, 2018, denied by the respondent on April 2, 2018;
b. $3,355.17 for physiotherapy services in a treatment plan submitted on June 26, 2018; and,
c. $1,350.00 (less $1,000.00 already approved) for physiotherapy services in a treatment plan submitted on February 10, 2019?
iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
BACKGROUND
4The applicant was making a right hand turn onto Queen Street on August 23, 2017, when an oncoming car making a left turn struck his car on the driver’s side. He remained conscious at all times. No ambulance was called. The applicant obtained a rental car and drove home. After the collision he was aware of pain in his lower back, neck, and left shoulder.
5His family doctor, Dr. Dhaliwal, recommended over the counter medicine, ordered x-rays that were negative for bone damage, and recommended physiotherapy treatment. The applicant commenced physiotherapy treatment at Active Physiotherapy within 2 weeks of the accident and continued therapy once a week up until July 9, 2018. He worked as a taxi driver at the date of the accident and as a line assembler before that. The applicant received an IRB from August 30, 2017 until September 16, 2018. The applicant went back to work on October 5, 2018.
6Dr. R. Ratti, a psychologist, at an Insurer’s Examination on July 16, 2018, indicated that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment, either as a taxi driver or line assembler. He also reported that there were no psychological barriers preventing the applicant from returning to work.1
7Dr. J. Millard, psychiatrist, at an Insurer’s Examination on July 19, 2018, found that there was no accident related musculoskeletal or neurological impairment that would preclude the applicant from returning to work.2
8Dr. Paul Kominek, chiropractor on an Insurer’s Examination on July 5, 2018, reported that the applicant, from a functional perspective, demonstrated sufficient physical capacity to perform all pre-accident work duties. The report stated that there were no physical limitations that would restrict the applicant’s capacity to perform pre-accident employment.3
Results
9The applicant is not entitled to receive a weekly income replacement benefit for the period from September 16, 2018 to October 5, 2018.
10The applicant is not entitled to the medical benefits recommended by Active Life Wellness Centre.
11The applicant is not entitled to interest or an award under Ontario regulation 664.
Analysis
IRB
12Income replacement benefits are provided to an insured who was employed at the time of the accident and as a result of the accident and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.4
13The applicant submitted no evidence, including no medical evidence, to support his claim for a continued IRB. The applicant admitted in his evidence that he went back to work on October 5, 2018. The only issue is whether the applicant is entitled to an IRB from the time that the respondent stopped paying him an IRB on September 16, 2018, to October 5, 2018, when he went back to work.
14The applicant gave no evidence himself on the entitlement to an IRB. The Reports of Dr. Ratti, Dr. Millard, and Dr. Kominek all indicate that the applicant can go back to work and that he suffers no substantial inability to perform the essential tasks of his pre-accident employment.5
15The onus is on the applicant to prove his case on a balance of probabilities.
16I find that the applicant has not met the onus of proving that he suffers a substantial inability to perform the essential tasks of his employment, for the period in question.
MEDICAL BENEFITS
17Section 15(1) of the Schedule requires all medical expenses to be reasonable and necessary, before the insurer is required to pay for them.
18The applicant has not submitted any evidence whatever to show that the expenses are reasonable and necessary. The onus is on the applicant to show that they are reasonable and necessary.
19I find therefore that the medical benefits are not reasonable and necessary
INTEREST
20There is no interest owing, as no benefits are owing.
AWARD
21The Tribunal can make an award against an insurer, if it finds that an insurer has unreasonably withheld or delayed payments. There are no payments owing. I find therefore that that an insurer has not unreasonably withheld or delayed payments.
CONCLUSION
22Based on the above reasons the applicant’s appeal is dismissed.
Released: May 4, 2020
Robert Watt
Adjudicator