Licence Appeal Tribunal File Number: 19-009467/AABS
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:
Eric Berkoh
Applicant
and
Scottish & York
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Eric Berkoh, Applicant
Ravneet Panag, Counsel
For the Respondent:
Sophia Chaudri, Counsel
Heard by Videoconference:
November 18, 19 and 20, 2020
BACKGROUND
1The applicant seeks entitlement to income replacement benefits (IRBs) and medical benefits.
2On November 23, 2018 the applicant was involved in a motor vehicle accident. The applicant applied for IRB and medical benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 20101 ("Schedule"). The applicant received IRBs in the amount of $400.00 per week from after the accident until May 14, 2019. The IRB was then stopped based on the various s. 44 insurer's examinations which concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. The applicant returned to work in and around September 2, 2019 and therefore he is not seeking IRBs past September 2, 2019.
3Additionally, the applicant applied for medical benefits which were denied by the respondent on the basis that the medical benefits were not reasonable and necessary.
4The applicant disagreed with the respondent's decisions regarding IRBs and medical benefits and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for dispute resolution. The parties were able to narrow some of the medical issues in dispute however they were not able to resolve all of the issues and therefore the matter proceeded to a hearing.
ISSUES TO BE DECIDED
5The parties agreed that the following issues are to be decided
a. Is the applicant entitled to receive an income replacement benefit in the amount of $400 per week from May 14, 2019 to September 2, 2019?
b. Is the applicant entitled to the following costs for chiropractic treatment recommended by Downsview Healthcare Inc. in treatment plan (OCF-18) submitted on the below noted dates?
i. $1,830.08; OCF-18 submitted on February 13, 2019?
ii. $1,632.56; OCF-18 submitted on May 10, 2019?
iii. $1,235.04; OCF-18 submitted on July 5, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is not entitled to IRBs from May 14, 2019 to September 2, 2019. The applicant is also not entitled to the disputed treatment plans. As no benefits are overdue, there is no interest payable.
ANALYSIS
a) IRBs
7Sections 5 and 6 of the Schedule set out entitlement to IRBs. Section 5(1) states that 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 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. Section 6(1) provides that the IRB is payable for the period in which the insured suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.
8The onus is on the applicant to show that he suffers a substantial inability to perform the essential tasks of his or her employment.
9The applicant submits that he is entitled to IRBs from May 14, 2019 to September 2, 2019. The applicant admits that he returned to work (with a new company) September 3, 2019.
The essential tasks of the applicant's employment
10The applicant must show what the essential tasks are, and also must show that he has substantial inability to perform the essential tasks.
11The applicant testified that prior to the accident he worked for an employment agency. His role was to drive workers to their respective worksites and pick them up. He also testified that he helped around the office during the day, which included running errands such as driving to pick up coffee and office supplies, as well as occasionally assist in tidying up the office.
12The respondent submits that the applicant has not provided sufficient detail as to what the essential tasks of his pre-accident employment with the employment agency were. He has not provided specifics as to how he spent his work day, or how much time was spent on certain tasks, instead the applicant provided a vague description of his pre-accident position. As well, the applicant has not provided his employment file or his record of employment confirming his last day worked.
13The respondent led evidence that the applicant was also self-employed pre and post accident. The respondent notes that the applicant had a business in Africa, and that the business continued to operate after the accident, and that the business operates without the applicant physically being in Africa. However, there was no evidence led as to what the business in Africa was, or what the tasks were.
14The respondent also submits that the applicant did not provide sufficient details of the essential tasks of his pre-accident employment. The applicant therefore has not shown that he cannot do the essential tasks of his pre-accident employment, because those essential tasks were unknown.
15The OCF-2 lists the applicant's position as a driver, and the clinical notes and records of the family doctor, Dr. Beharry, of November 26, 2018, also note that the applicant worked as a driver. The applicant also self-reports his pre-accident employment as a driver. Based on this evidence on a balance of probabilities, I find that the applicant's essential task of his pre-accident employment was driving.
Can the applicant substantially do the essential tasks of his pre-accident employment?
16The onus is on the applicant to show that as a result of accident related impairments, he has a substantial inability to perform the essential tasks of his pre-accident employment.
17The submissions from the applicant are that he was prevented from performing his pre-accident employment, due to his physical and psychological impairments sustained as a result of the accident.
18For the reasons noted below, I find that the applicant has not met his onus to show that his accident related physical or psychological impairments prevented him from performing the task of driving from May 14, 2019 to September 2, 2019.
19While as noted above the essential task of the applicant's pre-accident employment is driving, the details of how much of the day was spent driving, the duration of the driving trips, and the distance travelled, were not provided. The applicant provided very little evidence in his testimony about his inability to work. He testified that he was unable to perform the duties as driver for the period of May 14, 2019 to September 2, 2019, because he did not feel whole as a result of the accident.
20The medical evidence shows that the first post accident visit to any medical practitioner was three days post-accident on November 26, 2018. On this day the applicant attended at his family doctor, Dr. Beharry, who noted that the applicant had complaints of neck, back and shoulder pain with interrupted sleep. The next visit was on January 7, 2019. At this visit the applicant reports that his neck/shoulder pains are improving and that he has back pains, right knee pain and interrupted sleep. Dr. Beharry does not recommend any formal treatment but instead recommends home exercises, heat, Tylenol #3 and nortriptyline. There are no further accident related complaints made to the family doctor. I also note that there are no visits to the family doctor between January 7, 2019 to April of 2020, and other than January 7, 2019, there are no further accident related complaints made by the applicant to his family doctor.
21The applicant does not point to, or rely on, any evidence that the physical injuries sustained in the accident limited his ability to return to his pre-accident job. The applicant does however rely on the evidence relating to psychological impairments, and specifically the psychological assessment of May 13, 2019 by Dr. Shaul, psychologist who opined as follows:
Mr. Berkoh indicated that he is suffering from significant levels of pain and emotional trauma which greatly contributes to his poor emotional and psychological state. His poor psychological and emotional state acts as a barrier to his return to his workplace. Further, the fact that Mr. Berkoh is experiencing memory and concentration difficulties; it is likely that he will not be able to perform his essential job tasks and duties as required.
22Dr. Shaul makes a diagnosis of specific phobia, vehicular.
23Prior to the above assessment with Dr. Shaul, an insurer examination (IE) with Dr. Challis, psychologist, took place on April 5, 2019. In that assessment the applicant reported that he has not returned to work as "he does not feel that he can sustain the physical energy and endurance necessary to drive for the majority of the day". Further, the applicant reported to Dr. Challis that "he is anxious while driving, however, does not prevent or restrict himself from doing so."
24The "Accident Fear Questionnaire" was administered by Dr. Challis, and it noted that the applicant reported that he is nervous before car travel, he would not avoid driving himself, but he is anxious and often avoids travelling as a passenger. I note that the applicant was a passenger when involved in the subject accident.
25While I have two competing reports, I find that neither one is particularly helpful as they are both based on the self-reporting of the applicant, which I find to be self-serving and not credible. The applicant reports to Dr. Shaul and Dr. Challis that he feels he is unable to work and has ongoing issues with pain, concentration, focus and anxiety. This information is not corroborated in any of the treating records, because as noted above, the applicant only saw his family doctor twice for accident related complaints.
26Further, when looking at the balance of the evidence, there are serious credibility issues. Below are some examples of the contradictory evidence provided by the applicant:
a. In the clinical notes and records of Dr. Shaul dated October 23, 2019, the applicant states that he wishes that he could go back to work and that his pain prevents him from working, however, the applicant testified that as of September 3, 2019, he returned to work as a driver with another company.
b. The applicant was diagnosed with chronic low back pain as noted in the family doctor's clinical notes and records from 2015 onwards, with the most recent pre-accident visit being April 4, 2017, however, the applicant does not tell any of his providers or assessors of the diagnosis of chronic low back pain. The reports indicate that the applicant states that he was in good health pre-accident with no issues, which as noted above contradicts the diagnosis made by the family doctor.
c. The applicant attends for a driver reintegration assessment in and around July 8, 2020, and reports that he has not returned to work since the accident. The applicant returned to work on September 3, 2019, almost a year prior to this assessment.
d. The applicant makes no mention of his ability to continue to operate his business in Africa pre and post accident. He does not disclose this business to the insurer or any assessors.
27The applicant reports to Dr. Shaul his nervousness and panic while driving:
Mr. Berkoh reported that he has driven since the accident. He related that he is nervous while driving, becomes panicked and often has to pull over. He shared that he now only drives close distances when absolutely necessary. He stated that he prefers not to drive too much.
28One month prior to seeing Dr. Shaul, to Dr. Challis the applicant reports being nervous before car travel, but he does not avoid it, and that he does avoid being a passenger.
29The applicant in his oral testimony makes no mention as to his inability to work due to any psychological issues. He testifies that he was unable to work because he was not his "whole self" and he was undergoing treatment for his physical injuries. In other words, the applicant does not state that he is unable to work due to his psychological injuries or impairments.
30Further, there is no evidence that points to the applicant being unable to work due to physical or cognitive injuries sustained in the accident. The respondent conducted IEs with Dr. Ranalli, neurologist, and Dr. Dessouki, orthopaedic surgeon. Both assessors concluded that the applicant is not prevented from working due to any accident related injuries or impairments. The applicant has provided no further reports or medical records that contradict the opinions of Dr. Ranalli and Dr. Dessouki.
31Thus, based on the above, I find that the applicant has not met his onus to show that he suffers a substantial inability to perform the essential tasks of his employment due to any injuries or impairments sustained as a result of the accident, and therefore, he is not entitled to IRBs from May14, 2019 to September 2, 2019.
b) The Treatment Plans
32The applicant is seeking the costs of three treatment plans, submitted February 13, 2019, May 10, 2019, and July 5, 2019. The three treatment plans in dispute are for chiropractic and massage services. The treatment plans are submitted by Downsview Healthcare, and the OCF-18s are filled out by Dr. Pivotran, chiropractor.
33Sections 14, 15 and 16 of the Schedule provides that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus to prove on a balance of probabilities that the treatment plans are reasonable and necessary.
34I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plans in dispute are reasonable and necessary because, other than the treatment plans themselves, there is no evidence showing that the treatment plans are reasonable and necessary expenses as a result of the accident.
35As noted above the applicant's immediate injuries were reported as pain in his neck, shoulder, and back. He thereafter reported headaches and right knee pain. The applicant testified that he has an injury to his right index finger, however there is no evidence of this being an injury from the accident. Further, the applicant reported that he hit his head during the accident and Dr. Ranalli, the IE neurologist, diagnosed the applicant with a mild closed head injury that has resolved. The applicant argues that the treatment plans in dispute are reasonable and necessary as his pains in his head (headaches), lower back and index finger persist.
36The respondent submits the treatment plans are not reasonable and necessary because, in the opinion of the IE medical assessors, Dr. Dessouki and Dr. Ranalli, the applicant has reached maximum medical recovery for his accident-related physical injuries, and any further facility-based treatment for chiropractic treatment will not improve his condition. The respondent further submits that the applicant has not identified a single recommendation from any health practitioner to suggest that additional chiropractic treatment is warranted.
37In terms of causation the respondent submits that the applicant was diagnosed with chronic low back pain prior to the accident, and that therefore, the applicant's continued back pain is not related to the accident.
38The goals in the three treatment plans are pain reduction, increase range of motion, increase strength, and to restore core stability and full spine flexibility. However, there is no medical evidence to support these recommendations. The ongoing injuries are based only on the self-reporting of the applicant.
39Dr. Pivotran, chiropractor, testified at the hearing. He confirmed that he was not advised by the applicant about his pre-accident diagnosis of chronic back pain, and not provided with any information from the family doctor. Dr. Pivotran also testified that he was not made aware of the applicant's pre-accident functionality.
40Dr. Pivotran as well provided no evidence in his testimony as to the necessity of the chiropractic treatment, or how it would assist the applicant in treating the ongoing reports of pain. He provided general comments, and generally what he would see in other patients, but provided little to no evidence as to why he believes the treatments as proposed are reasonable or necessary for this applicant. Dr. Pivotran in his testimony simply reiterated the goals listed in the treatment plans.
41The applicant provides no evidence that the ongoing pain complaints (that he submits warrants ongoing treatment), are as a result of the accident. There is no evidence that the applicant has ongoing injuries to his back, right knee or index finger as a result of the accident. There are no medical reports or any treating clinical notes and records linking the ongoing pain complaints to the accident. The applicant submits the clinical notes and records of Downsview Healthcare; however, these records show only treatments and the reports of pain, they do not speak to causation.
42Even if the injuries as reported by the applicant are as a result of the accident, the applicant points to only the treatment plans themselves, as evidence for the need for ongoing treatment. As discussed above, Dr. Pivotran did not say why he believes the treatment is reasonable and necessary for this applicant. There are no records from the family doctor, and given that the last time the applicant reported any accident related injuries or complaints to his family doctor was January 7, 2019, I find on a balance of probabilities that he did not have ongoing injuries that required treatment.
43Further, the family doctor did not refer or recommend the applicant for treatment, nor was he referred to any specialist. The applicant was directed to do home exercises, apply heat and take the prescribed medication.
44As a result of the evidence distilled above, I find that the applicant has not met his onus of showing that the treatment plans in dispute are reasonable and necessary. To discharge the onus, the applicant must provide more than just the treatment plans, and the applicant has not done so. Thus, the treatment plans in dispute are not reasonably necessary.
Interest
45As no benefits are owing there is no interest owing.
CONCLUSION
46The Applicant's application is dismissed in its entirety.
Released: November 5, 2021
Monica Chakravarti, Adjudicator