B. K. Y. v. Economical Insurance Company, 2020 CanLII 43646

B. K. Y. vs. Economical Insurance Company, 2020 ONLAT 19-005084/AABS

Citation: B. K. Y. vs. Economical Insurance Company, 2020 ONLAT 19-005084/AABS

Released Date: June 16, 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:

B. Y.

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Peter Downs, Counsel

For the Respondent: Christopher Schnarr, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on November 2, 2016 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”).

2The parties participated in a case conference but were not able to resolve the issues in dispute. This matter will proceed to a hearing.

ISSUES IN DISPUTE

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

i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period January 6, 2019 to date and ongoing?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,995.33 for psychological treatment, recommended by Seksek Chiropractic Professional Corporation in a treatment plan dated February 16, 2017, and denied by the respondent on May 1, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,694.10 for chiropractic treatment, recommended by Seksek Chiropractic Professional Corporation in a treatment plan dated July 25, 2017, and denied by the respondent on August 17, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $598.52 for physiotherapy treatment, recommended by Springbank Physiotherapy in a treatment plan dated November 16, 2018, and denied by the respondent on December 10, 2018?

v. Is the applicant entitled to receive a medical benefit in the amount of $498.75 for physiotherapy treatment, recommended by Springbank Physiotherapy in a treatment plan dated February 6, 2019, and denied by the respondent on February 11, 2019?

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,568.00 for chiropractic treatment, recommended by Seksek Chiropractic Professional Corporation in a treatment plan dated March 9, 2019, and denied by the respondent on March 5, 2019?

vii. Is the applicant entitled to receive a medical benefit in the amount of $1,910.00 for chiropractic treatment, recommended by Seksek Chiropractic Professional Corporation in a treatment plan dated November 20, 2018, and denied by the respondent on January 2, 2019?

viii. Is the applicant entitled to receive a medical benefit in the amount of $2,670.32 for psychological treatment, recommended by Allan Shapiro in a treatment plan dated April 25, 2019, and denied by the respondent on May 1, 2019?

ix. Is the applicant entitled to interest on any overdue payment of benefits?

BACKGROUND

4The applicant was injured in a motor vehicle accident on November 2, 2016. He had worked as a roofer and a framer before the accident. He was involved in a second accident on July 12, 2017.

5The applicant ‘s own evidence estimated that the impact of the first accident took place at a very low speed, specifically 2km/hr.¹ Pictures of his minivan show minor damage.² Neither police nor medical personal attended at the accident. The applicant did not attend for medical assistance until four days after the accident.³

6The applicant claims that he suffered back, left shoulder, and neck pain. The back pain radiates into his hips, buttocks, and legs. He also claims that he experiences psychological symptoms, including mood changes and depression.⁴.

7The applicant received income replacement benefits (“IRBs”) in the amount of $400.00 per week until January 2019.

8Ms. J. Steller did a functional abilities evaluation in April 2019, making a finding that the applicant was not able to compete in competitive employment due to his limitations of the lumbar spine, left hip and significant pain affecting his ability to sit walk, crouch, squat. and kneel.⁵ Likewise, Dr. Potter also came to the conclusion that the applicant suffered a complete inability to engage in gainful employment.⁶

9The applicant’s treating family physician, Dr. Rahal, noted that the applicant consistently exhibited back pain during his attendances at the clinic.⁷ There were no discussions between the applicant and his family doctor about the issue of work-hardening.⁸

10Between November 2016 and June 20, 2019, the applicant received physical rehabilitation.⁹

11Dr. P. Tansey, conducted an orthopaedic IE on May 15, 2017 and concluded that the applicant sustained myofascial strain-type injuries to his back. Dr. Tansey found that the applicant was capable of continuing with the administrative tasks of running his own business. He recommended a graduated return to work after six weeks of active therapy.¹⁰

12The respondent approved multiple treatment plans throughout 2017 and 2018.¹¹ These treatments had not reduced the applicant’s symptoms or increased his level of function.¹²

13The applicant ‘s second accident appeared to have exacerbated the injuries from the first accident. He was paid a non-earner benefit for the second accident.

14The applicant did not seek medical treatment from January 10, 2017, until the date of the second accident being July 12, 2017.

15The IRB was terminated by the respondent based upon IE assessments from Dr. Yee Orthopaedic Specialist,¹³ Psychologist Dr. Paul Derry,¹⁴ an FAE Report,¹⁵ TSA Vocational Assessment,¹⁶ and a labour market survey.¹⁷ The reports all concluded that the applicant is capable of working as a supervisor of trades, installers, repairers and servicers; a technical sales specialist in wholesale trade; a retail trade manager or customer information service representative.

16Surveillance of the applicant shows that he has been very active socially in 2018 and 2019, spending time driving and being away from his residence. Surveillance shows that, in 2018 and 2019, the applicant has interacted socially with short visits with different people.¹⁸ The applicant also had two Caribbean vacations in 2018.¹⁹

17The applicant has not attempted a return to any form of employment or attended an employment office to look for suitable employment.²⁰ The applicant did not attend Dr. Rahal’s for medical assistance between February 23, 2018 and December 3, 2018.²¹

RESULTS

18The applicant is not entitled to receive IRBs in the amount of $400.00 per week for the period January 6, 2019 to date and ongoing, denied December 19, 2018.

19The applicant is not entitled to any medical benefits as claimed in his application.

20The applicant is not entitled to any interest as no benefits are owing.

ANALYSIS

Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week for the period January 6, 2019 to date and ongoing?

21I find that the applicant is not entitled to receive an income replacement benefit in the amount of $400.00 per week for the period January 6, 2019 to date and ongoing, for the reasons set out below.

22Section 6 of the Schedule requires a complete inability by the insured to engage in any employment or self-employment for which the insured is reasonably suited by education, training, or experience.

23The accident was a very minor accident on November 2, 2016 by the applicant’s own admission. The applicant’s second accident appeared to have exacerbated his injuries from the first accident.

24Ms. J Stellar and Dr. Potter indicated that the applicant could not go back to work because he did not have significant pain affecting his ability to sit, walk, crouch, squat, and kneel. Their reports are contradicted by the surveillance showing the applicant socializing and driving. I question also how the applicant could go for two vacations in the Caribbean, if he functionally couldn’t move very long.

25The applicant also did not seek medical assistance from his family doctor, Dr. Rahal, for medical assistance between February 23, 2018 and December 3, 2018 for any medical problems. One has to question how serious the medical injuries are that the applicant claims to have incurred, when he no longer needs medical assistance.

26I accept the reports of Dr. Yee, Dr. Derry, Dr. Cha, the Vocational Assessment,²² and the labour market survey, all which indicate that the applicant can go back to work in other positions. The applicant has made no effort to seek employment to show that he tried to go back to work but couldn’t. He has provided no evidence that he tried to seek work as a supervisor of trades, installer, repairer and servicer; a technical sales specialist in wholesale trade; a retail trade manager or customer information service representative as set out in the reports of Dr. Yee Dr. Paul Derry, the FAE Report, TSA Vocational Assessment and the labour market survey.

MEDICAL BENEFITS

Is the applicant entitled to receive $498.75 and $598.52 for physiotherapy treatment recommended by Springbank Physiotherapy in treatment plans dated February 6, 2019, and November 16, 2018 denied on February 11, 2019 and on December 10, 2018?

27Section 15 of the Schedule requires all medical expenses to be reasonable and necessary.

28I find that the applicant has not shown, on a balance of probabilities, that the expenses are reasonable and necessary for the reasons set out below.

29The respondent approved multiple treatment plans throughout 2017 and 2018. These treatments had not reduced the applicant’s symptoms or increased his level of function. I would have to question what further physiotherapy treatments would accomplish. Again, I have difficulties with the applicant claiming to have functional problems because of e.g., back pain when he did not seek medical assistance from his family doctor Dr. Rahal’s February 23, 2018 and December 3, 2018. The applicant also did not pursue the recommendations for anti -inflammatory medication, yoga, facet joint injections or lumbar traction.²³

Is the applicant entitled to receive payments of $1,995.33 and $2,670.32 for psychological treatment recommended by Seksek Chiropractic Professional Corporation in treatment plans dated February 16, 2017 and April 25, 2019 which were denied on May 1, 2017 and on May 15, 2019?

30I find that applicant has not shown, on a balance of probabilities, that the expenses are reasonable and necessary for the reasons set out below.

31Dr. Rashid’s IE report dated April 26, 2017 indicated that the emotional distress the applicant was experiencing was mild and a GAF score of 80 was reported.²⁴ There is no other medical evidence that suggests that this treatment plan for $1,995.33 is necessary and reasonable.

32The treatment plan dated April 25, 2019 seeking $2,670.32 was denied by the respondent based on the s. 44 Psychology IE Report of Dr. Derry date December 17, 2018. That report found no psychological disorders.²⁵ Dr. Yee came to the same conclusion that the treatment plan was not reasonable.²⁶

Is the applicant entitled to receive payments in the amounts of $1,910.30 and $1,566.00 for chiropractic treatment recommended by Seksek Chiropractic Professional Corporation, in treatment plans dated November 20, 2018 and March 5, 2019 which were denied on January 2, 2019 and on March 11, 2019?

33I find that applicant has not shown on a balance of probabilities, that the expenses are reasonable and necessary for the reasons set out below.

34There has been no medical evidence put before the Tribunal indicating that the applicant needs chiropractic treatment. His own family doctor, Dr. Rahal, has made no recommendations that he obtain chiropractic treatment.

INTEREST

35No interest is owing as no benefits are owing

CONCLUSION

36The application is dismissed based on the above reasons.

Footnotes

1. 1Respondent’s Brief of Documents(RDB) Self reporting Collision Report of Applicant dated November 2 2016 tab1, p 2
2. 2Ibid colour Photos of van dated November 4, 2016 at tab 2 p10-16
3. 3RDB Decoded OHIP Summary dated may 7 2018 at tab 3 p.2
4. 4Applicant’s Book of Documents Affidavit of Applicant para 6,7 13-14 30
5. 5Ibid Dr. Potter Report dated April 26 2019 pages 6-7
6. 6Ibid p21
7. 7ABOD Dr. Rahal Affidavit at para 5
8. 8RDB Transcript of Brandon Young dated December 20, 2019, Q961 to 962 p144-145
9. 9RDB hands on healthOCF-18s dated January 31, 2017, February 16 2017 at Tabs 5A to 5b
10. 10RBSD s. 44 Orthopaedic Report of Dr. Tansey dated June 13, 2017 at Tab 7 p 6
11. 11RDB OCF-18s dated January 31, 2017 to October 9 2018 at Tabs 5A, 5D to 5j and 5M to 5P
12. 12RDB Transcript of Brandon Young dated December 20, 2019 Tab 8 Q940-941
13. 13RDB s. 44 Orthopaedic IE Report of Dr. Yee dated December 17,2019 at Tab 16 p7-8
14. 14RDB s. 44 Psychology IE Report of Dr. Derry dated December 17, 2018 at Tab 17 p16
15. 15RDB s. 44 FAE IE Report of Dr. Cha dated December 17, 2018 at Tab18 p11
16. 16RDB s44 Transferrable Skills Analysis &Vocational IE Report of Kelly Bauer dated December 17, 2018 at Tab 20, p13
17. 17RDB s44 Labour Market survey IE report of Kelly Bauer dated December 17, 2018 at Tab 21 p3-4,6-7, 9-10,12-19
18. 18RDB Surveillance Report and Video dated February 27, 2018 at tab 22, Surveillance Report and Video dated November 1, 209 tab 23
19. 19RDB Transcript of Brandon Young dated December 20, 2019 Tab 8 Q875 to 911 p132 to 136
20. 20Ibid Q715 p108
21. 21RDB Decoded OHIP Summary dated December 9, 2019, at tab 9 p2 and CNRs of Dr. Rqhal July 12,2017 to June 19, 2019 at Tab 25
22. 22RDB s44 Transferrable Skills Analysis &Vocational IE Report of Kelly Bauer dated December 17, 2018 at Tab 20, p13.
23. 23Dr. potter Report April 26, 2019 p20(Tab 1 applicant’s book) and April 24, 2019 FAE p7(Tab 3 applicant’s book
24. 24RDB s,44 Psychology IE Report of Dr. Rashid dated April 26, 2019 at Tab 29 p7
25. 25S. 44 Psychological IE Report of Dr. Derry dated December 17, 2018 at tab 17, p 15
26. 26RBD s. 44 Orthopaedic IE Report of Dr. Yee dated December 7, 2018 Tab 27p 7