Released Date: 10/21/2020

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:

R.A.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Shahen A. Alexanian

For the Respondent:

Mohamed R. Hashim

HEARD:

Via written submissions

OVERVIEW

1R.A. was injured in an accident on May 22, 2017, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva removed R.A. from the Minor Injury Guideline on the basis of a psychological diagnosis but denied the remaining medical benefits in dispute on the basis that they are not reasonable and necessary. Aviva denied R.A.’s claim for income replacement benefits (“IRB”) on the basis that she has not complied with its s. 33 requests and has not demonstrated that she meets the test for entitlement under s. 5. R.A. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 24, 2017 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $1,327.90 for exercise equipment recommended by Alpha Med Wellness Centre Inc in a treatment plan (OCF-18) submitted on September 28, 2017, denied on November 1, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $1,553.75 for medical services recommended by Dr. Zakrezwaki in a treatment plan submitted on November 21, 2017 and denied on December 19, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $2,590.84 for chiropractic services recommended by Dr. Charalambous in a treatment plan submitted on November 9, 2017, denied on November 16, 2017?

v. Is the applicant entitled to a medical benefit in the amount of $637.38 for chiropractic services recommended by Alpha Med Wellness Centre Inc. in a treatment plan submitted on April 12, 2018, denied on April 17, 2018?

vi. Is the applicant entitled to a medical benefit in the amount of $508.32 for medical services recommended by Alpha Med Wellness Centre Inc in a treatment plan submitted April 12, 2018, denied on April 17, 2018?

vii. Is the applicant entitled to a medical benefit in the amount of $1,966.20 for medical services recommended by Royal Health Evaluation in a treatment plan submitted May 29, 2018, and denied May 30, 2018?

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

RESULT

3R.A. is not entitled to payment for an IRB as she has not demonstrated that she meets the test for entitlement under s. 5. Further, she is not entitled to payment for any of the benefits in dispute as she has not demonstrated that they are reasonable and necessary or incurred.

ANALYSIS

Income Replacement Benefits

4R.A. claims entitlement to an IRB in the amount of $400 per week, submitting that she has been substantially unable to perform the duties of her pre-accident employment as a nurse due to her neck, arm, shoulder and back pain, which have restricted her ability to perform the heavier tasks of her job as well as to stand and walk for prolonged periods. R.A. submits that, due to her pain and her psychological complaints of depression and anxiety, she has also been unable to focus and multitask in the high-pressure environment of an intensive care unit. To this end, she submits that the longest she has been able to work in the two-years post-accident is two consecutive days and that she meets the test for entitlement under s. 5(1)1 of the Schedule.

5In response, Aviva asserts that, on review of R.A.’s OCF-1, OCF-2, and her disclosure to Dr. Mula, that she actually has three jobs, has missed minimal time as a result of injuries sustained in the accident and does not have a substantial inability to perform her pre-accident tasks. Aviva submits R.A. is a casual nurse at both [hospital 1] and at [hospital 2], as well as a self-employed financial advisor operating under the business name [WFG]. Aviva submits that, to date, neither complete employment records nor complete tax information have been produced by R.A in response to its s. 33 requests for same.¹ Aviva argues that R.A.’s affidavit states, for the first time in this written hearing, that she worked a total of 15 days since the accident, which it argues is in stark contrast to her disclosures to Dr. Syed and Dr. Mula, in which she confirmed a return to work on full-time duties and in her own s. 25 psychological report from Dr. Shaul, dated February 18, 2017, wherein she stated she returned to work on August 27, 2017, with no mention of intermittent attendance.

6Aviva further directs the Tribunal to the partial Notice of Assessment information that was provided in response to its s. 33 requests on July 22, 2019, in which it notes that R.A. appeared to earn $20,265.00 in personal income in 2016, and then earned $5,932.00 in personal income, plus $35,237.70 in self-employed (T4A) income in 2017. Aviva submits that “these disclosures are indicative of R.A.’s functional ability to return to work and suffer no loss of income as a result of the accident,” contrary to her arguments otherwise.

7It is R.A.’s burden to prove entitlement on a balance of probabilities. On review of the evidence before the Tribunal, I agree with Aviva that R.A.’s reporting to various assessors and documentary evidence indicate a return to work with no loss of income, which would result in a nullified IRB claim. Moreover, I would agree with Aviva that the lack of financial documentation provided renders an IRB quantum calculation difficult and it is still unclear if income assistance is available through either of her two listed collateral benefits providers. Further, R.A.’s submissions do not speak to her role as a “casual” (as opposed to full-time or part-time) nurse prior to and after the accident or her work as a financial advisor, and what effect that may have had on her functional ability and, for purposes of the IRB calculation, her disclosed income. Problematically, R.A.’s submissions did not address or rebut any of Aviva’s assertions.

8In any event, other than her complaints of anxiety that led to her removal from the MIG, I find that R.A. has not demonstrated that she has functional impairment that meets the disability test for IRB entitlement, and especially so where she has self-reported returning to work at other jobs. While the clinical notes and records of the family physician reference pain and anxiety, there is no indication that R.A. has been substantially unable to work as a result of these impairments and her family physician does not make a recommendation that she discontinue working. Accordingly, I find that R.A. has not satisfied her onus to prove on a balance of probabilities that she has a substantial inability to perform her pre-accident job tasks, or that she even suffered an economic loss, as a result of the accident.

Are the medical benefits reasonable and necessary?

9To meet her burden of proof under s. 15 that the medical and rehabilitation benefits she seeks are reasonable and necessary, R.A. offers her affidavit, the clinical notes of her family physician, Dr. Atalla, and the report of psychologist Dr. Shaul. On this evidence, R.A. submits she has been suffering from symptoms of anxiety and depression since the accident, as well as neck, back, shoulder and left upper extremity pain. Dr. Shaul diagnosed R.A. with somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood as a result of the accident and also recommended a social work assessment to assist her reintegration into society. While R.A. does not address any of the treatment plans in dispute individually, she submits that she has experienced improvement and pain relief from the physical treatments, can benefit from the social work assessment to reintegrate herself into society, and would also benefit from assistive devices due to her persistent pain symptoms.

10In addition to its position that R.A.’s physical injuries are predominantly minor injuries, Aviva relies on the s. 44 reports of Dr. Mula dated April 12, 2018 that found the treatment plans in dispute not reasonable and necessary, as R.A. had reached maximal medical improvement and reported being independent with self-care. Aviva further directs the Tribunal to inconsistencies in R.A.’s affidavit that was prepared in support of the treatment plans. I agree with Aviva and find that R.A. is not entitled to payment for any of the treatment plans in dispute as she has not demonstrated that they are reasonable and necessary.

11First, with regards to issues ii and vi, Aviva directs the Tribunal to R.A.’s affidavit, wherein she lists a lumbar support, long-handle bath sponge, and lightweight vacuum as devices that would, in her opinion, assist her. However, as Aviva points out, none of the disputed treatment plans are for such devices. The treatment plan dated September 28, 2017 (issue ii) is for exercise equipment such as an ergonomic mat, theraband kit, exercise ball and “education,” while the treatment plan dated April 17, 2018 (issue vi) is for a “wobble board” and more “education.” Where R.A. does not provide analysis to support why any of the wobble board, the exercise equipment or “education” is reasonable and necessary for her specific impairments, where there is no evidence that she has incurred these items and where she never expressed a desire for the assistive devices noted in the disputed treatment plans, I agree with Aviva that I cannot find either to be reasonable and necessary. In any event, the costs of both of these treatment plans ($1,327.90 and $508.32) is, in my view, exorbitant and unreasonable for the items proposed.

12Next, turning to issue vii, R.A. seeks $1,966.20 for a mental health assessment with a social worker to discuss her anxiety and what she has been going through since the accident. R.A. states that she can benefit from the social work assessment to reintegrate herself into society, but it is unclear what she means by this. In response, Aviva submits that it has funded psychological treatment via the OCF-18 dated April 19, 2018 from psychologist Dr. Nina Belysakova in the amount of $3,541.50, as well as relaxation tapes via the OCF-18 dated April 19, 2018 from Dr. Ilya Gladshteyn, totalling $452.00. Aviva submits, and I agree, that R.A.’s treating psychologists are better suited to make such recommendations and where neither of R.A.’s treating psychologists made a recommendation for a social work assessment, the treatment plan is not reasonable and necessary. Indeed, it is only the affidavit of R.A. that supports this plan, as the clinical notes of the family physician do not recommend R.A. for a social work assessment.

13With regards to issues iv and v, R.A. seeks payment in the amounts of $2,590.84 and $637.38 for chiropractic, rehabilitation and massage treatments. While Aviva acknowledges that R.A. was removed from the MIG based on her psychological impairments, it maintains that her physical injuries are minor and relies on the s. 44 findings of Dr. Mula, who found the treatment to be not reasonable and necessary. I agree. While R.A. submits that she experienced improvement and pain relief from the physical treatments she previously undertook, her submissions do not address why further chiropractic, rehab and massage treatment at this cost is specifically needed for sprain and strain-type injuries over two years post-accident. Further, where her family physician has not provided a referral for same and her self-reporting of the pain is intermittent (3/10, 4/10, sometimes 6/10) and does not rise to the “severe” level identified in her affidavit, it is difficult to see why further facility-based intervention is needed. Indeed, I agree with Dr. Mula’s findings that R.A. “has likely reached a plateau in her recovery, and at this juncture, further facility-based treatment would not likely lead to further significant, long-lasting improvement” to her soft-tissue injuries. Accordingly, I find the treatment plans not reasonable and necessary.

14Last, in issue iii, R.A. seeks payment for an assessment of attendant care needs in the amount of $1,553.75. Neither of R.A.’s affidavit nor her written submissions address this issue and she did not provide specific reasons or analysis to explain to the Tribunal why an assessment for attendant care would be reasonable and necessary where there is limited evidence that her function is affected. Where the clinical notes of the family physician to do not recommend attendant care, where Dr. Mula found the assessment “would not be of assistance to her” and where R.A. did not make a case for how it would be reasonable and necessary, I cannot find that it is.

15As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

16R.A. is not entitled to an IRB as she has not demonstrated that she meets the test for entitlement under s. 5. Further, she is not entitled to payment for any of the benefits in dispute as she has not demonstrated that they are reasonable and necessary or incurred.

Footnotes

1. 1The requested documentation identified in written submissions includes: (i) Notice of assessments for tax years 2016, 2017 & 2018, (ii) OCF-2 from [hospital 3], (iii) T4 from [hospital 3] for tax years 2016, 2017 & 2018, (iv) T2125 – Statement of Business Activities and the CCA schedule for tax years 2016, 2017 & 2018 related to her self-employment position with [WFG], (v) Financial statements for the last fiscal year end 2016, 2017 & 2018 related to her self-employment position with WFG, and (vi) An explanation of how her gross revenue for self-employment business is determined for her reporting to the CRA, with any supporting documentation related to her self-employment position with WFG.