Released Date: 11/02/2020
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:
K.K.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Lindsay Lake
APPEARANCES:
For the Applicant:
K.K.
For the Respondent:
Han Nguyen, Litigation Specialist
Danielle Wilkinson, Counsel
Mark Vella, Counsel
Court Reporter:
Ingrid Begaj
Heard by way of videoconference: October 22 and 23, 2020
OVERVIEW
1The applicant, K.K., was injured in an automobile accident on November 18, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)1 from Aviva Insurance Canada (“Aviva”), the respondent.
2Aviva terminated K.K.’s income replacement benefits and denied K.K.’s claim for two treatment plans for chiropractic treatment. As a result, K.K. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3The first case conference was held in this matter on May 28, 2019 and an in-person hearing was scheduled for October 1-2, 2019.
4On September 9, 2019, K.K. requested an adjournment of the hearing. K.K.’s request was granted by the Tribunal on September 17, 2019. The parties were ordered to attend a second case conference on October 30, 2019 at which time the in-person hearing was rescheduled to April 23-24, 2020. The in-person hearing was rescheduled once again due to COVID-19 restrictions to October 22-23, 2020. The hearing proceeded on October 22 and 23, 2020 by way of videoconference due to continued COVID-19 restrictions.
ISSUES IN DISPUTE
5The following are the issues to be decided:
(i) Is K.K. entitled to an income replacement benefit from August 17, 2018 to date and ongoing, and if so, in what amount?
(ii) Is K.K. entitled to chiropractic treatment recommended by Complete Rehab Centre as follows:
(a) $1,553.72 in a treatment plan (“OCF-18”) dated September 14, 2018, and denied on October 24, 2018?
(b) $1,328.10 in an OCF-18 dated November 1, 2018, and denied on November 26, 2018?
(iii) Is Aviva liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to K.K.?
(iv) Is K.K. entitled to interest on any overdue payment of benefits?
RESULT
6I find that:
(i) Aviva is not liable to pay K.K. income replacement benefits from August 17, 2018 to date and ongoing;
(ii) K.K. is not entitled to the two disputed treatment plans for chiropractic treatment; and
(iii) K.K. is not entitled to interest or an award under s. 10 of O.Reg. 664.
ANALYSIS
Income Replacement Benefits (“IRB”)
7An insurer’s obligation to pay IRBs, the eligibility criteria and the method of calculating the benefit amount are set out in s. 4 through s. 10 of the Schedule.
8In calculating the amount of IRBs payable to an insured person, an insurer is entitled to deduct 70 percent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.2
9Prior to the accident, K.K. worked a physically demanding full-time job at [construction company] as a construction labourer.
10The post-accident period for which K.K. is claiming IRBs is from August 17, 2018 to date and ongoing.
11At the hearing, I asked K.K. when he returned to work. K.K. testified that he attempted a return to work at [construction company] on one occasion but provided no further details about when this occurred but noted that this attempt was unsuccessful. In August 2018, however, K.K. testified that he went back to work at a different construction company which was owned by his friend but K.K. could not recall the company’s name. K.K. confirmed that his employment at his friend’s company required him to complete substantially similar tasks that he did while working for [construction company] but at a slower pace.
12In his reply closing submissions, however, K.K. said that he had made a mistake in his testimony and that he did not return to work at his friend’s company until August 2019. I place no weight on K.K.’s statement that he had erred when he testified that he returned to work in August 2018 as K.K. was given an opportunity to clarify or to explain any evidence that he provided as a result of my questions prior to the end of his testimony. While I appreciate that K.K. is self-represented, he made no correction to the date that he began working at his friend’s company when he was under oath or in his initial closing submissions. It was only upon hearing Aviva’s closing submissions that K.K. alleged he made a mistake. I find that K.K.’s statement given in his closing submissions regarding his return to work at his friend’s company is not evidence and I accept K.K.’s original testimony that he returned to work in August 2018.
13Aviva also submitted surveillance evidence of K.K. from multiple dates in August 2019 that show K.K. working at construction sites carrying multiple bricks, bending at the waist, navigating his way though scaffolding, lifting multiple bricks while bent at the waist, descending a ladder, moving large pieces of lumber unassisted, carrying two cinderblocks (one in each hand), using a hammer, turning over a large basin unassisted and carrying and using a steel quick cut saw unassisted. K.K. claims that he required assistance to his vehicle at the end of the work day after completing these tasks, but the surveillance evidence showed K.K. arriving home and navigating two sets of stairs without difficulties while carrying his lunch pail and a few other items on one of his work days.
14Even if I were to find that K.K. was entitled to IRBs at some point during the period in dispute, I find that he has failed to adduce any evidence with sufficient particulars and detail that would allow me to determine the amount of IRBs that would be payable given the deduction of post-accident gross employment income that Aviva is entitled to make. K.K. filed no income tax returns, no pay stubs or any documentation regarding his post-accident employment at his friend’s company. Even when I attempted to draw out additional information about K.K.’s post-accident earnings, K.K. failed to provide any definitive answers on how many hours he worked each week or what his earnings were as his only evidence was that he worked enough to pay the unspecified amount of his rent.
15In sum, K.K. has not provided any documentation or evidence to calculate the quantum of IRBs payable even if I found that he met the test for entitlement to IRBs during the period in dispute. I also do not fault Aviva for not making inquiries about K.K.’s post-accident income as I understand Aviva was not aware of K.K.’s return to work in August 2018 until K.K.’s testimony at the hearing. For all of the reasons set out above, it is unnecessary for me to consider K.K.’s entitlement to IRBs and I find that Aviva is not liable to pay K.K. income replacement benefits from August 17, 2018 to date and ongoing.
16Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
17For the reasons that follow, I find that K.K. is not entitled to the proposed OCF-18s for chiropractic treatment as he has failed to prove that they are reasonable and necessary on a balance of probabilities.3
18The two treatment plans in dispute for chiropractic treatment were completed by Dr. Rahim Jessa, chiropractor, at the Complete Rehab Centre. The first OCF-18 is dated September 14, 2018 and sought funding in the amount of $1,553.72 for 12 sessions over 8 weeks and the second OCF-18 is dated November 1, 2018 and sought funding in the amount of $1,328.10 for 10 sessions over 8 weeks. The goals of the two OCF-18s are identical and are as follows: pain reduction, increased range of motion; increase in strength; increased cardiovascular fitness levels; increase endurance and flexibility; improve motor control of lumbopelvic and cervicothoracic muscles; return to activities of normal living; and return to pre-accident work-activities.
19K.K. had attended Complete Rehab Centre since November 22, 2017 and received various modalities of treatment, including physiotherapy, massage therapy and chiropractic treatment, by several health care providers including Dr. Jessa. K.K. received treatment at the Complete Rehab Centre twice a week until mid September 2018 and his last date of treatment was November 1, 2018. Over the course of his treatment, K.K. completed several Roland-Morris Disability Questionnaires, Neck Disability Index questionnaires and Brief Pain Inventory questionnaires which all suggest that K.K.’s condition had not improved but rather had become worse over the almost twelve months of his by-weekly treatment. These questionnaires show that K.K.’s treatment at Complete Rehab Centre had not been effective and there is no evidence that any further similar treatment would be beneficial to K.K. in achieving the stated goals of the OCF-18s including pain reduction.
20The clinical notes and records (“CNRs”) of Dr. Gurpreet Singh, K.K.’s family doctor, also do not support a finding that the proposed chiropractic treatment was reasonable and necessary. In entries dated March 26, 2018, April 6, 2018, May 10, 2018, September 10, 2018 and November 2, 2018, Dr. Singh only recommends the continuation of physiotherapy and, on some of these occasions, massage therapy. At no time does Dr. Singh recommend chiropractic treatment for K.K. in any of his CNRs that were before me as evidence for this hearing.
21There was one recommendation in support of K.K. receiving chiropractic treatment in the February 12, 2019 Consultation Report by Dr. Hany Demian, physician, of Pain Care Clinics. However, I am unable to give weight to Dr. Demian’s recommendation for chiropractic treatment. Dr. Demian fails to make any comment or provide any analysis as to how further similar treatment would benefit K.K. or produce a different result, as K.K. had received similar recommended treatment for almost one-year post-accident without any reported improvement.
22In opining that K.K. does not require any further facility-based treatment in her November 5, 2018 Section 44 Examination Physician Paper Review Report, Dr. Sabrina Ming-Wai Tu, physician, also reported that K.K. noted worsening symptoms of his neck pain, back pain, shoulder pain and of his headache despite receiving regular therapy for eight months at the time of Dr. Tu’s prior in-person assessment of K.K. in July 2018. Overall, Dr. Tu’s November 5, 2018 report did not support the reasonableness and necessity of the two proposed OCF-18s for chiropractic treatment.
23Therefore, I find that K.K. is not entitled to the two proposed treatment plans for chiropractic treatment as he has failed to prove on a balance of probailities that the proposed treatment was reasonable and necessary.
Award
24Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
25As there are no benefits payable, I find that Aviva has not unreasonably withheld or delayed payments to K.K. As a result, K.K. is not entitled to an award in this matter.
Interest
26As there are no overdue payment of benefits, no interest is payable.
CONCLUSION
27For the reasons outlined above, I find:
(i) Aviva is not liable to pay K.K. income replacement benefits from August 17, 2018 to date and ongoing;
(ii) K.K. is not entitled to interest or an award under s. 10 of O.Reg. 664; and
(iii) This application is dismissed.
Released: November 2, 2020
________________________
Lindsay Lake
Adjudicator
Footnotes
- O. Reg. 34/10.
- Schedule, s. 7(3)(a).
- The onus is on K.K. to prove entitlement to the proposed treatment plans. See Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.