Citation: Gulistani v. Intact Insurance Company, 2021 ONLAT 20-002157/AABS

Released Date: 10/18/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Abdul Gulistani

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Kenway Yu, Counsel

For the Respondent:

Mikhail Shloznikov, Counsel

HEARD:

By Way of Written Submissions

1The applicant, Abdul Gulistani, was injured in an automobile accident on July 31, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Intact Insurance Company, the respondent.

2The respondent denied the applicant’s claim for physiotherapy and chiropractic treatment and determined that the applicant was not eligible for non-earner benefits (NEBs). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on October 19, 2020, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is the applicant entitled to NEBs of $185.00 per week from August 31, 2016 to date and ongoing?

(ii) Is the applicant entitled to $1,300.00 for physiotherapy recommended by Wilson Foot Physiotherapy in a treatment plan (OCF-18) dated April 27, 2017?

(iii) Is the applicant entitled to $2,292.16 for chiropractic treatment and massage therapy recommended by Glenn Watkins in an OCF-18 dated March 12, 2020?

(iv) Is the applicant entitled to $3,889.55 for chiropractic treatment, massage therapy and physiotherapy recommended by Wilson Massage in an OCF 18 dated September 15, 2020?

(v) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

PROCEDURAL ISSUE

5It was unclear from the evidence and submissions before me whether the applicant’s policy of insurance was entered into prior to the changes to the Schedule effective June 1, 2016. As a result, I asked the parties for further submissions on which version of the Schedule applied in this matter.

6On October 1, 2021, both parties confirmed that the applicant entered into his policy of insurance with the respondent prior to June 1, 2016. As a result, both parties agreed that the Schedule as it read prior to June 1, 2016 applies in this matter.

RESULT

7I find that the applicant is not entitled to NEBs before February 19, 2019, as he failed to submit a completed Disability Certificate (OCF-3) prior to this date. While I have found that the applicant is not statute-barred from proceeding with his claim for NEBs, I also find that the applicant is not entitled to NEBs from February 19, 2019 to date and ongoing. The applicant is not entitled to the disputed treatment plans, an award under Regulation 664 and no interest is payable. The application is dismissed.

ANALYSIS

NEBs

When did the applicant apply for NEBs?

8Section 36 of the of the Schedule outlines the process for claiming NEBs. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to s. 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

9In this matter, there is an OCF-3 that was dated August 23, 2016 and was completed by Cristian Renteria, physiotherapist. This OCF-3 indicated that the applicant suffered from a complete inability to carry on a normal life.

10The next OCF-3 was dated February 19, 2019 and was completed by Mandeep Singh Sethi, physiotherapist. This OCF-3 also indicated that the applicant suffered from a complete inability to carry on a normal life.

11The respondent’s position is that it never received the August 23, 2016 OCF-3. The respondent submitted that there is no mention of the August 23, 2016 OCF-3 in its log notes and the applicant has provided no proof of delivery. As a result, the respondent submitted that first OCF-3 it received from the applicant was the February 19, 2019 OCF-3.

12In reply, the only submissions offered by the applicant on this issue was that it was completely unreasonable for the respondent to claim that it did not receive the August 23, 2016 OCF-3. The applicant submitted that it was sent to the respondent through HCAI and via fax along with all of the other documents and invoices from the same facility, which were all received and/or paid.

13I find that the applicant has failed to prove on a balance of probabilities that he submitted the August 23, 2016 OCF-3 to the respondent at any time prior to the submission of the February 19, 2019 OCF-3 for the following reasons:

(i) The applicant submitted no evidence to support his submissions that the August 23, 2016 OCF-3 was submitted through HCAI and/or faxed to the respondent. Further, the copy of the August 23, 2016 OCF-3 in the applicant’s submissions lacks a cover page although there is a stamp on it indicating it was faxed on November 26, 2017 from the treating clinic. This document also has “P. 2” on the top right-hand corner, indicating to me that the first page of the fax was not included in the applicant’s submissions. As a result, I cannot determine where the August 23, 2016 OCF-3 was faxed to on November 26, 2017;

(ii) The applicant provided no date that the August 23, 2016 OCF-3 was alleged to have been submitted and/or faxed to the respondent; and

(iii) I have no evidence that an invoice was submitted to the respondent for the cost of completing the August 23, 2016 OCF-3.

14Therefore, I find that the applicant did not apply in accordance with s. 36(2) of the Schedule for NEBs until he submitted the February 19, 2019 OCF-3 to the respondent.

The applicant’s claim for NEBs is not statute-barred

15The respondent’s position is that the applicant’s claim for NEBs is statute-barred because he did not apply for NEBs until the respondent received the February 19, 2019 OCF-3, which was dated greater than 104 weeks post-accident.

16To support its position, the respondent relied upon the Tribunal’s decision in K.A. v. Intact Insurance Company (K.A. v. Intact).³ In that decision, the Tribunal found:

[Section] 36 provides no exceptions to the above requirement that an insured seeking a NEB must submit a completed OCF-3 and that an insurer is not required to make payment until that application is complete. I further agree that the language is compulsory: s. 36 statutorily-bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility provided by s. 12.⁴

17I find the decision in K.A. v. Intact is distinguishable from the facts in this matter. In K.A. v. Intact, the applicant was involved in an accident on May 7, 2017 and the Tribunal referred to the 104-week period of NEB eligibility. Therefore, it is clear that the post-June 1, 2016 version of the Schedule applied in K.A. v. Intact. In this matter, the pre-June 1, 2016 version of the Schedule applies and, as a result, there are no time limits on the eligibility period for NEBs. Therefore, I find that the Tribunal’s finding in K. A. v. Intact that s. 36 statutorily bars an applicant’s claim where the OCF-3 was submitted following the 104-week period of NEB eligibility does not apply in this matter.

18The respondent also relied upon the decision in Volpe v. Co-operators General Insurance Company (Volpe).⁵ I also find that this decision is distinguishable as in Volpe, the only OCF-3 submitted by the insured person indicated that they did not meet the statutory criteria to be eligible for NEBs.⁶ In this matter, the February 19, 2019 OCF-3 indicated that the applicant suffered from a complete inability to carry on a normal life and, therefore, was eligible for NEBs.

19For all of the reasons set out above, I find that the applicant is not statute-barred from claiming NEBs.

The applicant is not entitled to NEBs from February 19, 2019 to date and ongoing

20I find that the applicant has failed to prove on a balance of probabilities that he is entitled to NEBs for the period of February 19, 2019 to date and ongoing.

21The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that they suffer from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident. Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

22“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”⁷

23In its submissions, the respondent referred to the decision in Heath v. Economical Mutual Insurance Company (Heath),⁸ wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁹

24Heath also outlines several principles for the determination of entitlement to NEBs which include considering all the applicant’s pre-accident activities but, placing greater weight on activities that were more important to the applicant’s pre-accident life.

25The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.¹⁰

26On the evidence before me, I am unable to engage in the first step of the Heath analysis to determine if the applicant suffers from a complete inability to carry on a normal life given the inconsistent information regarding the applicant’s pre-accident life circumstances and activities. For example, in the June 18, 2019 Independent Medical Insurer’s Examination (IE) Assessment by Dr. Mohamed Khaled, physician,¹¹ Dr. Khaled noted that prior to the accident, the applicant was “going to start working at Swiss Chalet as a cook,” and that he worked for a short time after the collision but at the time of his assessment he was not working.¹² Dr. Khaled also noted that the applicant was a musician.¹³

27In the June 18, 2019 Occupational Therapy In-Home IE Assessment by Andy Beecroft, occupational therapist,¹⁴ the applicant reported that prior to the accident, he was working as a musician/singer, 2 to 4 times per month.¹⁵ There were no other reports of any pre-accident employment in this report.

28In the June 18, 2019 Psychological IE Assessment Report by Dr. Hannah Rockman, psychologist,¹⁶ the applicant reported experiencing no physical pain prior to the accident and was able to work long hours on his feet.¹⁷ Dr. Rockman noted that at the time of the accident, the applicant worked full-time as a chef at Swiss Chalet and part time as a hotdog cart vendor in addition to being a musician and playing music when he could at bars and events.¹⁸ Dr. Rockman’s report, however, is internally inconsistent as Dr. Rockman also stated later in the report that at the time of the accident, the applicant was in between jobs as he was relocating with his family from Toronto to Barrie, but that he had a fulltime cook position at a restaurant waiting for him once he completed the relocation.¹⁹ However, the applicant reported to Dr. Rockman that he could not begin this new due to pain from the accident.²⁰

29In stark contrast to the applicant’s self-reports of his pre-accident life in the 2019 IE reports, the July 10, 2017 Psychiatric Evaluation Report by Dr. Abbas Azadian, psychiatrist,²¹ noted that the applicant was involved in a previous motor vehicle accident in 2015 and, “as a result of that accident (my emphasis added),” he could not return to work.²² Dr. Azadian confirmed that the applicant worked for Swiss Chalet for many years, but that the applicant stopped working after his accident in 2015.²³ Dr. Azadian’s report is silent on any other pre-accident employment and does not mention the applicant being a musician.

30I agree with the respondent that there are no clinical notes and records (CNRs) from any treating practitioner, dated either before or after the subject accident before me, as evidence for the hearing. This is significant, given the applicant’s involvement in a previous motor vehicle accident in the year preceding the subject accident in which the applicant’s own assessor reported he was unable to continue working after.

31In addition to the inconsistent pre-accident evidence, the applicant also failed to identify what period of time he engaged in his pre-accident activities and the frequency in which he engaged in most of his pre-accident activities. The applicant also failed to lead any evidence as to what activities were more important to him pre-accident as required by Heath.

32Therefore, I find that the applicant has failed to prove on a balance of probabilities that he suffered from a complete inability to carry on a normal life as a result of the accident from February 19, 2019 to date and ongoing, as I am unable to determine his life circumstances and activities prior to the accident. As a result, the applicant is not entitled to NEBs for this period.

33Sections 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.

34I find that the applicant is not entitled to the proposed treatment plans as he failed to prove that each of the OCF-18s are reasonable and necessary on a balance of probabilities.

April 27, 2017 OCF-18

35The respondent submitted that the applicant is statute-barred from pursuing his claim to the Tribunal for the April 27, 2017 OCF-18, as he applied to the Tribunal outside of the two-year limitation period set out in s. 56 of the Schedule. Although the respondent’s denial letter could not be produced, the adjuster log notes indicate that a denial regarding this OCF-18 was mailed to the applicant, and faxed to his representative and the treating clinic on May 25, 2017.

36The applicant neither denied receiving the denial correspondence nor even addressed the limitation period raised by the respondent in his reply submissions.

37As the application in this matter was received on February 27, 2020 by the Tribunal and the applicant did not request relief under s. 7 of the [Licence Appeal Tribunal Act, 1999],²⁴ I find that the applicant is statute-barred from pursuing his claim to the Tribunal for the April 27, 2017 OCF-18, as he applied to the Tribunal outside of the two-year limitation period set out in s. 56 of the Schedule.

38Even if I am incorrect on the limitation period issue, I find that the applicant has not met his onus of proving the reasonableness and necessity of the proposed treatment plan, as there is no evidence before me for any physical treatment recommendations on or about the date that this treatment plan was submitted for consideration by the respondent. The applicant only submitted an emergency room report from Royal Victoria Regional Health Centre regarding an unrelated matter dated April 27, 2017 and, while not in existence at that time the OCF-18 was submitted, Dr. Azadian’s July 10, 2017 Report.²⁵ While this report speaks to the applicant’s ongoing pain and numbness in his left ankle and foot, as well as back pain,²⁶ the only recommendations for treatment were psychiatric in nature.

39In contrast, the respondent relied upon an August 4, 2017 IE Medical Assessment Report by Dr. Khaled.²⁷ In his report, Dr. Khaled opined that the applicant sustained a crush injury to his left ankle and lower leg resulting in bruising and contusions, but that there was no evidence of fractures or ligamentous tear injury.²⁸ Dr. Khalid opined that the April 27, 2017 OCF-18 was not reasonable and necessary, given that the accident was more than a year prior to the treatment plan and that he did not expect further physical therapies to significantly improve the applicant’s outcome.²⁹ Dr. Khaled opined that the applicant could obtain symptomatic relief through independent, self-directed active rehabilitation.³⁰

40On the evidence, I find that the applicant has failed to prove that the April 27, 2017 OCF-18 was reasonable and necessary on a balance of probabilities.

The March 12, 2020 and September 15, 2020 OCF-18s

41The March 12, 2020 OCF-18 was completed by Dr. Glenn Watkins, chiropractor, and sought funding for a total body assessment, 15 one-hour sessions of chiropractic treatment, and 10 thirty-minute massage therapy sessions. The goals of the treatment plan were pain reduction, decrease inflammation of restricted spinal joint segments and a return to activities of normal living. The OCF-18 noted that since the last treatment plan, the applicant reported improvement but continued to complain of pain during his activities of daily living and, as a result, further therapy was advised.

42The September 15, 2020 OCF-18 was completed by Dr. Afshin Markhail Maskan, chiropractor, and sought funding for a total body assessment, 15 one-hour sessions of chiropractic treatment, 25 thirty-minute sessions of massage therapy, and 10 one-hour sessions of physiotherapy. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, decrease in inflammation of restricted spinal joint segments, and a return to activities of normal living. The treatment plan noted that the applicant reports improvement with therapy received at the clinic, but that pain and functional limitations persisted. As a result, further therapy was recommended to promote and maintain gains.

43The applicant submitted no evidence dated on or about the dates of either of these treatment plans to support his position that his entitlement. As discussed above in paragraph [30], the applicant submitted no CNRs from his family physician or from any of his physical treatment clinics. The applicant did rely upon the April 29, 2019 clinic note from Dr. Grigory Karmy, physician,³¹ in which Dr. Karmy diagnoses the applicant with chronic mechanical lower back pain, chronic neuropathic left lower limb pain, left sacroiliac joint dysfunction, sleep disorder, and a mood disorder.³² Dr. Karmy, however, does not recommend any physical therapy and, instead, noted that the applicant elected to try pain medication.³³ In any event, I place little weight on Dr. Karmy’s report as there is no mention of the applicant’s previous 2015 motor vehicle accident. Only “Nil” is listed by Dr. Karmy under the applicant’s past medical history.

44It is well settled that a treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of a treatment plan. In the present case, the only evidence that the applicant offered was dated almost a year prior to the March 12, 2020 OCF-18, and well over a year prior to the September 15, 2020 OCF-18. As a result, I find that the applicant has not met his burden of proving on a balance of probabilities that the March 12, 2020 and September 15, 2020 treatment plans are reasonable and necessary.

Award

45Section 10 of Regulation 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.

46As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

47As there are no benefits owing, no interest is payable.

CONCLUSION

48For the reasons outlined above, I find that the applicant is:

(i) Not entitled to NEBs from August 31, 2016 to February 18, 2019 as he failed to apply for NEBs until February 19, 2019;

(ii) Not statute-barred from proceeding with his claim for NEBs;

(iii) Not entitled to NEBs from February 19, 2019 to date and ongoing;

(iv) Not entitled to the April 27, 2017 OCF-18, the March 12, 2020 OCF-18, and the September 15, 2020 OCF-18;

(v) Not entitled to an award under Regulation 664 or interest; and

(vi) This application is dismissed.

Released: October 18, 2021