Released Date: 07-03-2020
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:
M.M.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Amanda Fowler, Counsel Danielle Wilkinson, Counsel
HEARD: In-Person: November 25, 26 and 27, 2019
OVERVIEW
1This matter arises as result of a motor vehicle accident that took place on May 1, 2017 (the “Accident”). Following the Accident, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and the respondent refused some of the benefits including income replacement benefits (IRB) and some medical and rehabilitation benefits.
2The applicant then filed an application with Licence Appeal Tribunal (the “Tribunal”) and, at the case conference, the parties confirmed the issues in dispute as per the Tribunal’s Order of August 28, 2019. However, prior to and during the hearing the parties withdrew some of the issues listed in the Tribunal’s Order.
ISSUES IN DISPUTE:
3The following issues are to be decided in the hearing:
a. Is the applicant entitled to an IRB in the amount of $400.00 per week from April 29, 2018 to date and ongoing?
b. Is the applicant entitled to $2,343.35 for an orthopedic mattress recommended by Toronto Medical Centre in a treatment plan (OCF-18) submitted to the respondent on August 28, 2018?
c. Is the applicant entitled to $990.00 for chiropractic treatment recommended by Toronto Medical Centre in an OCF-18 dated August 28, 2018 in the amount of $1,824.31 and partially approved in the amount of $834.81?
d. Is the applicant entitled to $1,271.69 for psychological treatment recommended by Toronto Medical Centre in an OCF-18 dated August 30, 2018 in the amount of $2,743.37 and partially approved by the respondent in the amount of $1,471.68?
e. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT:
4Based on the full evidence and submissions of the parties I find as follows:
a. The applicant is not entitled to IRBs.
b. The applicant is not entitled to $2,343.35 for an orthopedic mattress.
c. The applicant is not entitled to $990.00 for chiropractic treatment.
d. The applicant is not entitled to $1,271.69 for psychological treatment.
e. The applicant is not entitled to interest.
ANALYSIS:
I. INCOME REPLACEMENT BENEFITS:
5In order for the applicant to receive IRBs, she must meet the eligibility criteria as per section 5(1) of the Schedule, which states the following:
(1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:
The insured person,
i. 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, or
ii. was not employed at the time of the accident but,
iii. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,
6I must firstly decide if the applicant is eligible to receive IRBs based on her employment status at the time of the Accident.
7The applicant submits that she was employed with [The Financial] just prior to the Accident. She submits that she started at [The Financial] in the beginning of January of 2017 and continued there until the date of the Accident. The applicant as well testified that she attempted to return to work at [The Financial] in October of 2017 but only lasted four days. She testified that she was a “licensed” bookkeeper and her role included payroll, accounting and bookkeeping.
8To corroborate her employment at [The Financial], the applicant relies on her own testimony, the documentary evidence, and the testimony of her “employer” Mr. Y.
9The respondent submits that the applicant was not working at [The Financial] prior to the Accident. The last position the applicant held was at a jewelry store from November 14, 2016 to January 14, 2017 and the applicant was not employed in the 26 weeks prior to the accident nor was the applicant receiving benefits under the Employment Insurance Act (EI Benefits). The respondent submits that the applicant is not credible as a witness and the testimony provided and the position of the applicant is contrary to the documents tendered as evidence. The respondent submits that, when looking at the documents that were provided from May 1, 2017 until October of 2017, there is no mention of employment with [The Financial.]
10I find, based on the totality of the evidence and on a balance of probabilities, that the applicant was not employed at the time of the Accident. I further find that the applicant was not employed for at least 26 weeks during the 52 weeks before the accident nor was she receiving benefits under the Employment Insurance Act (EI Benefits) at the time of the Accident.
a) Applicant’s Testimony
11The applicant provided oral evidence at the hearing with respect to her employment. She testified that she was worked with her employer Mr. Y since the beginning of January of 2017 and her last day worked was April 28, 2017.On the day of the Accident of May 1, 2017, although it was a working day, she took the day off. The applicant also testified that she attempted to return to work in October of 2017 but was unsuccessful.
12The applicant’s testimony was overwhelmingly contradicted by the documentary evidence. The documents that were created and submitted just shortly after the Accident show that the applicant was not working, and the documentary evidence as well directly contradicted the applicant’s claims of her credentials and her income earned.
13The following are examples of the documents that do not support the applicant’s purported employment status:
a. The Application for Accident Benefits dated June 5, 2017
i) the applicant states under part 5 that she was unemployed and had not worked 26 weeks in the past 52 weeks.
ii) In part 8 with respect to income replacement determination, the applicant notes only one employer, [The Jewelry store] and does not list [The Financial.]
b. Disability Certificate dated June 12, 2017
i) The applicant is asked: “are you currently working?” to which she answers “no.” She is then asked her last day worked, for which her answer is February 1, 2017.
ii) The applicant answers “no” she was not working at the time of the accident.
iii) The applicant answers she was not employed for 26 weeks out of the last 52 weeks.
iv) The applicant answers she is not receiving EI benefits.
v) In part 6, the health practitioner states that the questions regarding the applicant’s inability to perform her job and modified return to work are not applicable to the applicant.
c. Clinical Notes and Records of Toronto Medical Center
i) The initial medical consultation of June 5, 2017 states the employer is [The Jewelry store.]
ii) The initial medical consultation of June 5, 2017 states the last day worked at [The Jewelry store] is January 14, 2017.
iii) The treatment plan of June 12, 2017 notes in part 8 a) and c) that the applicant is not employed (it does, however, list that the goals of the treatment plan is to return to pre-accident work activities).
iv) The treatment plan of July 19, 2017 in part 8 again notes that the applicant is not employed, and the goals in part 9 do not include a return to work.
d. 2017 Notice of Assessment
i) The notice of assessment for 2017, conducted on January 24, 2019, lists the applicant’s T4 earnings for 2017 of $1,048.00.
e. Book Keeping Certificate received post-accident:
i) The applicant testified that she was working as a bookkeeper, earned her bookkeeping certificate in 2016 and Mr. Y testified that he was told that the applicant had a bookkeeping certificate prior to starting her job at BMA Financial
ii) However, the medical consultation note of June 5, 2017 from the Toronto Medical Center notes that the applicant is attending Academy of Learning College for bookkeeping
iii) In the application for CPP Disability, the applicant notes that she received her certificate in Payroll and Bookkeeping in August of 2017 (post-Accident)
iv) In the report of Dr. Kanji, of March 17, 2017 her treating doctor, he reports that the applicant informs him that “she is now back in school…” and “She had an exam on Friday…”
f. CPP Disability Application
i) In the application to CPP, the applicant stated that she was running her own home- based book keeping business and seeing new clients but had to let clients go because of her impairments (which the applicant indicates in the application started 1.5 years earlier and not on the date of the Accident)
ii) She stated that in August of 2017 she received her certification in bookkeeping and payroll, directly contradicting her evidence that she received it earlier
b) “Employer’s” Evidence
14The applicant also relied upon the in-person testimony of the employer Mr. Y. to support her position that she was employed at the time of the Accident. The employer, Mr. Y, did little if anything to show that the applicant was employed. The evidence provided by Mr. Y was contradictory and at some points lacked credibility, as described below.
15When Mr. Y was directly asked about whether the applicant was paid hourly or salary, there was no direct answer provided. Mr. Y. confirmed that the Employer’s Confirmation of Income (OCF-2) dated October 16, 2017 was correct. When pointed to the fact that the weekly income listed in the OCF-2 and the weekly income when looking at the paystub of April 2017 differed, his explanation was that he calculated the paystub on an hourly basis but calculated the OCF-2 weekly amount based on a yearly salary.
16On October 3, 2019, the respondent contacted Mr. Y via phone and then sent an email confirming their conversation. The email stated that as per the phone call Mr. Y confirmed that he did not know anyone named M.M (the applicant) and that she never worked for [The Financial Group.] Mr. Y then responded to the email from the respondent and confirmed that the respondent’s email confirming the conversation of October 3, 2019 was accurate.
17Five days later on October 7, 2019, Mr. Y sent another email to the respondent and this time stated that the applicant was a contractor and worked for three months in 2018 (Accident date is May 1, 2017). Mr. Y testified that the change came about because he checked his “soft records” – i.e. records on his computer.
18The respondent questioned Mr. Y as to why if the applicant was a contractor, the paystub of April of 2017 noted deductions for CPP, EI, and Federal taxes. Mr. Y. did not provide any reasonable explanation or coherent reason.
19Further Mr. Y as well testified that in the email of October 7, 2019, he made an error and meant to say that the applicant was employed in 2017 not 2018. Mr. Y also indicated that the reason why he stated three months and not four months was that his records did not indicate anything for January but that the OCF-2 that stated a start date of January 2, 2017 was accurate. He then stated that he no longer had records.
20Mr. Y also led evidence that the documents that were put to him and bore his name or his company’s name were misrepresentations. Specifically, Mr. Y led evidence that when the applicant filed for an income disability policy following the Accident, the employer statement provided to the disability insurer did not have his signature but had one that was similar. He further testified had never heard of this disability insurer,
21Further, Mr. Y testified that the applicant did not work for him in October of 2017 and in fact never returned back to work with him. He further testified that the pay stub that was produced by the applicant as evidence to show a return to work in October of 2017 was never done by him and, although it is similar to paystubs that he would have issued, this October 2017 paystub did not emanate from his company.
22Mr. Y confirmed he provided no T4, no Record of Employment and had no employment file relating to the Applicant who was his only employee.
c) No Evidence of Employment.
23The above is not a complete distillation of all the evidence but show the serious lack of support that the applicant was employed in the capacity she claims prior to the Accident.
24The applicant was not credible as a witness or as a claimant. Her evidence was self-serving and, when confronted with anything contradictory, she stated that there were errors made by others
25Based on the above, I find that on a balance of probabilities that the applicant was not employed with [The Financial]. I do find that the applicant was employed at the [The jewelry store] as per the OCF-2 dated October 10, 2017 from November 14, 2016 to January 14, 2017.
26Therefore, pursuant to section 5(1) of the Schedule the applicant was not employed or receiving EI benefits in the 26 weeks prior to the Accident. As such, the applicant is not eligible for income replacement benefits from April 29, 2018 to date and ongoing.
II. TREATMENT PLANS
27Pursuant to section 14 of the Schedule, the insurer is liable to pay for medical and rehabilitation benefits for a person who sustains an impairment as a result of an accident. Further, section 15(1) notes that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.
28The applicant has the onus to prove on a balance of probabilities that she qualifies for the medical and rehabilitations benefit as per section 14 and 15 of the Schedule.
a) Orthopedic Mattress
29The first medical and rehabilitation benefit in dispute is the cost of an orthopedic mattress.
30The applicant takes the position that the orthopedic mattress was recommended by the applicant’s family physician, Dr. Sheth, in a script of May 1, 2018. This script was then sent to the applicant’s rehabilitation facility (the “Treatment Provider”) who then completed a treatment plan dated June 21, 2018. The applicant submits that this treatment plan was denied by the respondent despite the fact that the applicant suffers from chronic pain and lumbar pain and despite the fact that the applicant’s family physician recommended same.
31The respondent agrees that the orthopedic mattress was recommended by the family doctor. The respondent also agrees that following that recommendation that the Treatment Provider then issued a treatment plan. However, the respondent takes the position that the impairments the orthopedic mattress is to treat is not as a result of the Accident and that the expense of the mattress is not an accident related expense.
32I agree with the respondent. Based on the evidence, the orthopedic mattress is not related to accident related impairments and therefore is not payable by the respondent.
33The recommendation by Dr. Sheth is dated May 1, 2018 and states:
Orthopedic mattress: Please provide this patient with the above for lumbar pain due to severe osteoarthritis1
34Dr. Sheth recommended a mattress for lumbar pain and osteoarthritis. The evidence shows the applicant had lumbar pain and osteoarthritis prior to the Accident and not as a result of the Accident.
35Specifically, the decoded OHIP summary in the two years pre-accident has at least ten notations indicating osteoarthritis and/or lumbar pain.2 The report of Dr. Kanji, a pre-Accident treating physician, dated December 19, 2016 states that the applicant had low back pain for fifteen years on and off, and diagnosed the applicant with osteoarthritis.3
36Most compelling however is the report of Dr. Rod dated March 10, 2014, three years pre-Accident who concludes in the report that the applicant has a severe case of chronic pain syndrome with poor prognosis and lists chronic lower back pain, chronic hips, pain and sprain, chronic lumbar polyradiculopathy.4
37I place little weight on the orthopedic expert report of Dr. Efala relied upon by the applicant to show accident related impairments because Dr. Efala was not provided with any pre-Accident notes and the applicant did not reveal her pre-Accident issues with chronic pain and osteoarthritis.
38As well the family doctor who recommended the mattress only became her family doctor following the Accident and his information is also based on the Applicant’s self-reporting with no pre-Accident records and no notations to demonstrate that he knew about the applicant’s pre-Accident medical history and therefore I also place little weight on these records to show accident related impairments.
39The Applicant has not met her onus to show that the orthopedic mattress is required as a result of impairments sustained in the Accident and therefore the applicant is not entitled to the cost of the mattress.
b) Chiropractic Treatment Plan
40On August 28, 2018, a treatment plan was submitted for a total sum of $1,824.81. The treatment proposed was compromised of nine sessions of physiotherapy, nine sessions of chiropractic therapy and nine sessions of massage therapy. It also comprised of one session of education and the cost of completing the form.
41The respondent agreed to fund the physiotherapy portion but found the balance not reasonable and necessary based on an assessment conducted under Section 44 of the Schedule.
42The applicant has not pointed to any evidence or information as to the reasonableness and necessity of chiropractic therapy and massage therapy. The treatment plan identifies its goals as pain reduction, increased range of motion, and increased strength. It also identifies that functionally the goal is to restore pre-Accident function
43The applicant relied on the report of Dr. Efala, the orthopedic surgeon who recommended physical modalities but did not recommend chiropractic or massage therapy. The clinical notes and records of Dr. Seth do not include recommendations for chiropractic therapy or massage. Lastly, the chronic pain report of Dr. Wilderman, relied upon by the applicant, as well does not recommend massage or chiropractic treatment.
44The applicant did not call any witnesses or file any reports that speak to the necessity or reasonableness of chiropractic and massage therapy in and around August 21, 2018 (the date of the Treatment Plan). Therefore, I find that the balance of the treatment plan totaling $990.00 is not reasonable and necessary and therefore the applicant is not entitled to this benefit.
c) Psychological Treatment Plan
45On August 30, 2018, a treatment plan for psychological treatment (the Psychological Plan) was submitted. The respondent partially approved the treatment plan. The onus is on the applicant to show that the balance of the Psychological Plan is reasonable and necessary. The applicant did not meet this burden.
46Firstly, I find that the applicant has not shown that the treatment sought in the Psychological Plan is as a result of Accident related injuries or impairments. The pre-accident records, specifically the report of Dr. Rod of March 10, 2014 confirmed that prior to the Accident, the applicant had significant emotional problems caused by her existing chronic pain, and the applicant had severe depression.
47Secondly, the applicant has not shown that the Psychological Plan is reasonable and necessary.
48The only evidence tendered by the applicant was from Dr. Keeling, the psychologist who recommended the psychological treatment. However, Dr. Keeling testified that he had never met the applicant, never spoke with the applicant and never reviewed the treatment notes of the psychotherapist before he made the recommendations in the Psychological Plan.
49While I am cognizant that Dr. Keeling and the section 44 assessor agree the applicant suffers from depression and adjustment disorder, the applicant has provided no further evidence to show the balance of the Psychological Plan is reasonable and necessary.
50Therefore, I find the applicant has not met her onus and the applicant is not entitled to $1,271.69 for psychological treatment.
CONCLUSION
51The application is dismissed in its entirety.
Released: July 3, 2020
Monica Chakravarti
Adjudicator