Licence Appeal Tribunal File Number: 19-010353/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:
Jan Gupta
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Adrian Lomaga, Counsel
For the Respondent:
Naina Tandon, Counsel
HEARD:
By way of written submissions
BACKGROUND
1J.G. was injured in an automobile accident on July 29, 2016, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the “Schedule”). TD denied J.G.’s claim for an income replacement benefit (“IRB”) as it determined she was no longer entitled to the benefit. TD also denied her claims for medical and rehabilitation benefits on the basis that they were not reasonable and necessary. J.G. disagreed with TD’s determinations and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute:
a. Has J.G. sustained a catastrophic impairment as defined by the Schedule?
b. Is J.G. entitled to an IRB in the amount of $400.00 per week from June 14, 2019 to date and ongoing?
c. Is J.G. entitled to an attendant care benefit in the amount of $792.37 per month from July 29, 2016 to date and ongoing?
d. Is the medical benefit in the amount of $1,804.41 for physiotherapy treatment, recommended by Melissa McAlister in a treatment plan (OCF-18) dated September 6, 2018, denied on September 24, 2018, reasonable and necessary?
e. Is the cost of examination expense in the amount of $2,200.00 for a neuropsychological cognitive assessment, recommended by Dr. Trepanier in an OCF-18 dated February 21, 2019, denied March 4, 2019, reasonable and necessary?
f. Is the cost of examination expense in the amount of $2,200.00 for a speech language pathology assessment, recommended by Functionability in an OCF-18 dated March 26, 2019, denied on April 15, 2019, reasonable and necessary?
g. Is TD liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to J.G.?
h. Is J.G. entitled to interest on any overdue payment of benefits?
3In her submissions, J.G. withdrew issue numbered 2a. In its submissions, TD advised that it approved the OCF-18 described in paragraph 2d. As a result, my decision will focus on the remaining issues in dispute.
FINDINGS
4Based on a review of the evidence, I find the following:
a. J.G. is entitled to an IRB for the period of June 14, 2019 to date and ongoing. Interest is payable in accordance with s. 51 of the Schedule.
b. J.G. is not entitled to an ACB, no interest is payable.
c. J.G. is entitled to the OCF-18 for the neuropsychological cognitive assessment. Interest is payable in accordance with s. 51 of the Schedule.
d. J.G. is not entitled to the speech language pathology assessment, therefore no interest is payable.
e. J.G. is not entitled to an award or costs.
ANALYSIS
Entitlement to Post-104 IRBs (June 14, 2019 to date and ongoing)
5I find that J.G. is entitled to an IRB for the period in dispute, as she has provided compelling evidence that she is completely unable to engage in any employment for which she is reasonably suited by education, training or experience.
6The test for post-104-week IRBs is a stringent test set out in s. 6(2)(b) of the Schedule. Section 6(2)(b) provides that an insurer is not required to pay an IRB after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. The onus to establish entitlement remains with the applicant.
7J.G. received employment income and sick pay up to November 24, 2016. Based on her earnings during this period, she was not entitled to IRBs up to and including November 24, 2016. She received long term disability benefits from November 25, 2016 to September 21, 2020. J.G. further received Canada Pension Plan Disability benefits from approximately February 2017 to September 2020. In November 2020, J.G. agreed to an advance buyout of her long-term disability benefits.
8J.G. is seeking IRBs for the post-accident period of June 14, 2019 to date and ongoing. J.G. sustained various injuries as a result of the accident, including a concussion, depression, post-traumatic stress disorder, right wrist fracture, WADII, and chronic pain in the shoulders, neck, back and hip.
9J.G. submits and the records show that she continues to suffer from post-concussion syndrome, chronic pain, whiplash symptoms, right hand limited function, dizziness, poor sleep, neck and low back pain, light sensitivity, headaches, photophobia and poor concentration.
10At the time of the accident, J.G. was employed with Starbucks as a Finance Manager earning $121,200 annually ($58.30/hr), according to the OCF-1. Her role focused on developing and implementing strategic plans and restructuring efforts, to streamline business processes to unlock efficiencies, reduce costs, and increase profits. The role required constant use of a computer, mouse and telephone. Frequent interactions with others in person, by phone and at meetings was a part of her job duties.
11Post-accident, J.G. has not been able to return to her pre-accident employment or any employment.
12In support of her entitlement, J.G. submits that she successfully applied for and received a Canada Pension Plan (“CPP”) disability benefit. J.G. submits that the CPP disability test is a stricter test than the complete inability test under the Schedule. In order to successfully receive a CPP disability benefit, an applicant must show that he or she suffers from a severe and prolonged disability that renders them incapable of pursing any gainful occupation. While J.G.’s entitlement to a CPP disability benefit does not guarantee her entitlement to post-104-week IRBs, I am persuaded by the finding that she passed a more stringent test for income benefits.
13J.G. relies on the Medical Report from her CPP Application. The Medical Report form required for a CPP disability benefit must be completed by a physician, and it describes the medical condition(s) that necessitated the need for the application for the disability benefit, as well as outlining the reasons the physician believes the applicant satisfies the test for the disability benefit. The January 29, 2018 Medical Report was completed by family physician, Dr. Devi. Dr. Devi provided the opinion that J.G. suffers from severe post-concussion syndrome, evolving into chronic fibromyalgia syndrome, right hyperplasia, multiple myofascial strain, neck, shoulders, right hip, both arms, right hand scaphoid injury, with right thumb pain and right-hand functional limitation, reactive anxiety and depression as a result of the accident. Dr. Devi also noted that J.G. suffered a previous head injury and concussion in a July 2014 accident.
14Dr. Devi opined that J.G. had sustained a repeat concussion within a two-year period and she continues to experience dizziness, photophobia, anxiety and cognitive difficulties. Dr. Devi noted that despite treatment, she continues to have significant disability. Dr. Devi commented that this supports that J.G.’s condition is sufficiently severe to prevent her from returning to any work, and further, it is prolonged as her medical condition is long continued and of indefinite duration. Dr. Devi’s treatment records also support this opinion. I place significant weight on Dr. Devi’s records, because as the family physician, given his regular and extensive treatment history with J.G., he would be most familiar with her functional limitations as a result of the accident. Dr. Devi is also best positioned to observe and note changes and/or progress in J.G.’s impairments and limitations.
15Dr. Scherer, vocational psychologist, completed a psychovocational rehabilitation planning evaluation in May 2019 in which he detailed J.G.’s impairments and the barriers to a return to the workplace. Dr. Scherer noted that J.G. was unable to pursue any occupation for which she is reasonably suited by education, training, or experience. Dr. Scherer noted that J.G.’s cognitive difficulties, especially with multitasking and cognitive fatigue, would be difficult for her to maintain an adequate pace in any work environment.
16TD produced the following multidisciplinary s. 44 reports:
a. A Transferable Skills Analysis Report by Ruth Billet, Certified Vocational Evaluator, dated May 30, 2019;
b. A Vocational Evaluation by Ruth Billet dated May 30, 2019;
c. A Labour Market Analysis by Ruth Billet dated May 30, 2019;
d. A Vocational Addendum, Ruth Billet dated May 30, 2019;
e. A Labour Market Analysis Addendum, Ruth Billet dated May 30, 2019;
f. A Functional Capacity Evaluation, Dr. Andrew Holland, chiropractor, dated May 30, 2019;
g. An Orthopaedic Assessment by Dr. Jose Guerra, orthopaedic surgeon, dated May 30, 2019;
h. Addendum, Dr. Guerra dated May 30, 2019;
i. A Neurology Report by Dr. Nagib Yahmad, neurologist, dated May 30, 2019;
j. Addendum, Dr. Yahmad dated May 30, 2019;
k. A Psychological Assessment by Dr. Terra Seon, psychologist, dated March 5, 2019;
17TD relied on these s. 44 multidisciplinary reports to determine that J.G. does not have a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience. The assessors found: that J.G. demonstrated a decreased range of motion of the cervical and lumbar spine and bilateral hip; that her performance was invalid, and he deferred his final comments to the other medical assessors (Dr. Holland); that the decreased range of motion in the right wrist would not prevent her from engaging in the employment options noted by Ms. Billet and, on reconsideration, after reviewing the April 26, 2017 MRI of the right wrist, which noted, “no acute, subacute or old fracture line. Interpretation: Normal wrist.” (Dr. Guerra). In his addendum, Dr. Guerra maintained his conclusion.
18In addition, Dr. Yahmad noted that there was no evidence of a significant traumatic brain injury, any significant post-traumatic amnesia or ongoing active post-concussion syndrome and confirmed same in two subsequent addenda. Dr. Seon found that despite J.G.’s reported emotional challenges, her current presentation is not significant enough to warrant a psychological diagnosis in direct relation to the injuries sustained in the accident, and in addition, that J.G. denied any persistent high-level anxiety regarding any health concerns. Lastly, Ms. Billet found that if J.G. is not able to return to her position as a Finance Manager, she could return to lesser roles, such as: Credit Manager, Budget Analyst, Management Consultant, or Budget Clerk, despite the reduction in earnings. This opinion remained unchanged in two subsequent addenda.
19On review of the s. 44 reports, I do not find the reports compelling, as the opinions were provided individually and there is no consideration of the combined impact of J.G.’s impairments on her ability to return to her pre-accident work, similar employment or any employment. Further, I am not persuaded by Ms. Billet’s recommendations of possible suitable occupations, as they do not consider any of J.G.’s functional limitations. Ms. Billet’s report is limited to a vocational and transferable skills perspective and does not consider accident-related functional impairment. In addition, although the s. 44 assessments were for the purposes of determining whether J.G. suffered a catastrophic impairment, TD relied on the same s. 44 reports for its determination of J.G.’s entitlement to the benefits in dispute. For these reasons, I place more weight on Dr. Scherer’s report, as it conducted a more fulsome approach to the consideration of J.G.’s functional impairments and the impact on her ability to retrain and engage in meaningful employment.
20Dr. Scherer commented on the importance of recognizing that the test for employability is not solely an individual’s capacity to maintain oneself in the workplace on a steady part-time or full-time basis. Dr. Scherer opined that the individual must demonstrate the capacity to establish a reasonable balance between work performance and, after working hours, homemaking and familial demands, while leaving some energy for light recreational pursuits. Dr. Scherer further opined that there were no medical findings that provide a substantive basis to conclude that her condition would improve further as it relates to her level of employability. Dr. Scherer concluded that J.G. is considered unemployable in any capacity, including for consistent engagement in sedentary part-time employment.
21In addition to Dr. Scherer’s report, there are reports from Dr. Devi, Susan Cross, Manulife’s vocational rehabilitation specialist, Dr. Wigmore, Manulife’s psychologist, and Dr. Bain, who completed a Functional Abilities Evaluation, all of which I find to be compelling. On behalf of J.G., and in addition to the records of family physician Dr. Devi, the assessors noted J.G.’s limitations prevent any suitable alternative occupations from being identified (Ms. Cross); that she suffered functional limitations for work in a role with high cognitive and interpersonal demands (Dr. Wigmore); and the functional limitations to her right wrist, neck and low back, dizziness, light-headedness and “brain fog” she experiences, she is unable to engage in all employment activities for which she is qualified or may reasonably become qualified by training, education, or experience (Dr. Bain). Dr. Bain went on to further note that her demonstrated strengths, range of motion and functional tolerances do not meet the physical requirements of her pre-accident activities of daily living.
22Given the extent of J.G.’s injuries and the fact that she is a woman in her mid-40’s with cognitive difficulties, I find it is unlikely that she would be able to retrain and be successful at securing gainful employment similar to her pre-accident position. It is further unlikely that she would be able to meet the standard of productivity that was expected of her in her role as a Finance Manager, and respectfully, the alternative positions recommended by Ms. Billet are not comparable to her pre-accident role. This is also acknowledged in Dr. Scherer’s report where he noted that even if J.G. was successful in finding a low-level, routine position, such a role typically offers minimum wage compensation. Dr. Scherer opined that J.G. would be unable to approximate her pre-accident wage, which would likely be detrimental. There is no evidence that J.G. was not fulfilled in her role as a Finance Manager, or that she would have not continued in the position had the accident not occurred.
23Although TD points to subsequent business endeavours that J.G. engaged in post-accident, there is no evidence that the those endeavours required the same level of engagement as her pre-accident employment role, or that financially, she was compensated at the same or similar rate. Although she briefly engaged in some post-accident business endeavours, a January 3, 2020 Activities of Daily Living statement noted that worsening symptoms prevented her from attending any further conferences.
24For these reasons, I find that J.G. suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Consequently, J.G. is entitled to a post-104-week IRB from June 14, 2019, ongoing. In light of the receipt of CPP disability benefits, TD is entitled to any applicable deductions. As the quantum was not an issue in dispute before me, I leave it to the parties to determine quantum.
Is J.G. entitled to an attendant care benefit?
25J.G. has not established that she has incurred any attendant care expenses as a result of the accident.
26Section 19 of the Schedule provides that ACBs shall pay for all reasonable and necessary expenses that are incurred by or on behalf of an insured as a result of an accident for services provided by a professional. This is key because, in conjunction with s. 19(1)(a) of the Schedule, s. 3(7)(e) sets out that an expense in respect of goods or services is not uncured by an insured unless it meets the following three criteria: (i) the insured person has received the goods and services to which the expense relates; (ii) the insured person has paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense; and (iii) the person who provided the goods or services, (a) did so in the course of employment, occupation or profession in which he or she would have ordinarily have been engage, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.
27J.G. submits that she is unable to provide proof of having incurred attendant care services. She argues that since the benefits were denied, she was not in a position to pay a service provider until TD provided funding for same.
28Simply, J.G. has failed to prove on a balance of probabilities that she incurred any ACB expenses in accordance with s. 3(7) of the Schedule. Accordingly, J.G. is not entitled to payment of ACBs.
Are the OCF-18s reasonable and necessary?
OCF-18 dated February 21, 2019 in the amount of $2,200.00
29Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an insured who sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the insured as a result of the accident.
30J.G. relies on an August 27, 2019 neuropsychological report from Dr. Trepanier in support of her claim for the OCF-18. Dr. Trepanier conducted a six-hour examination in which she measured weakness in verbal abstract reasoning, phonetic and semantic fluency, sustained concentration tasks, fine motor speed, grip strength, unstructured verbal material, and delayed recall. Dr. Trepanier noted cognitive, behavioural and emotional deficiencies, functional limitations, as well as pain symptomatology. Dr. Trepanier diagnosed J.G. with a mild cognitive disorder due to mixed etiology with persistent post-concussive symptoms, sleep disturbance, moderate emotional distress, chronic pain, adjustment disorder with anxiety and moderate depressed mood and persistent somatic symptom disorder with predominant pain. Dr. Trepanier recommended physical therapy, massage, psychological treatment, and occupational therapy intervention. Dr. Trepanier concluded that J.G.’s prognosis for a return to work, in the same pre-accident capacity as a finance manager, is not feasible, even on a gradual basis. Her prognosis for a return to work is guarded.
31In response, TD does not directly address the OCF-18. Instead, it points to the Explanation of Benefits (OCF-9) that it provided to J.G. In the OCF-19, the explanation provided was that due to the length of time since the accident, the services were deemed not reasonable and necessary. It was TD’s determination that there was no sufficient medical documentation to support the claim for the neuropsychological assessment. TD went on to suggest that J.G. continue her approved occupational therapy sessions which it alleged should assist in relieving her reported symptoms.
32On reply, J.G. argues that TD’s request for a neuropsychological assessment (as it related to the IRB) indicates that such a request was reasonable and necessary. In addition, J.G. submits that the medical evidence confirming the extent of her brain injury supports that the assessment is reasonable and necessary.
33I agree with J.G. Plainly, the purpose of an assessment is to determine the extent of an injury and what treatment may be necessary to treat the impairment. In order to justify whether an assessment is reasonable and necessary, there should be compelling evidence that the person suffers from the condition that is being recommended for investigation. Upon review, there is compelling medical evidence from her treatment providers and assessors that J.G. suffered a concussion, suffers from post-concussion syndrome, and other cognitive issues as a result of the concussion. On the evidence, I am persuaded that J.G. suffered accident-related impairments which justify a neuropsychological cognitive investigation. As such, J.G. has established that the OCF-18 for the neuropsychological cognitive assessment is reasonable and necessary.
OCF-18 dated March 26, 2019 in the amount of $2,200.00
34J.G. is not entitled to the disputed OCF-18 for a speech language pathology (“SLP”) assessment.
35J.G. did not specifically address this disputed OCF-18 in her submissions, however, in reply, she relies on the reports of her occupational therapist, Ms. Roeder and psychovocational expert, Dr. Scherer, who recommend an SLP assessment. In addition, she relies on the reports of her family physician, Dr Devi, ENT specialist Dr. Goldfarb, neurologist Dr. Gawel, Mr. Godlewski, vestibular and concussion physiotherapist, Dr. Trepanier, neuropsychologist and psychiatrist Dr. Kiraly, who all diagnosed J.G. with a brain injury and related sequelae.
36TD again relies on the April 15, 2019 explanation of benefits letter that advised J.G. that the assessment was deemed not reasonable and necessary due to the length of time that had passed since the accident and the lack of sufficient medical documentation to support the need for this type of assessment. TD submits that J.G. failed to meet the three-part reasonable and necessary test, that, a) the OCF-18 has identifiable goals, b) the goals show evidence of being met and, c) the costs (financial and otherwise) are reasonable with regards to the measure of success and availability of alternative treatment modalities.
37I agree with TD. Surveillance evidence shows that post-accident, J.G. regularly attended conferences related to business ventures she had established. While she admittedly attended as a means of treatment for her accident-related impairments, I note that she not only attended, but was a key-note speaker both at in-person and virtual conferences. Given that her participation in these conferences requires public speaking, I am not persuaded that a speech language pathology assessment is reasonable and necessary.
38J.G. has not provided compelling evidence that she suffers from an impairment that would require an assessment of speech language pathology. As previously noted, an assessment must be supported by persuasive evidence that such a condition exists and warrants further investigation into the extent of the impairment. Consequently, I find that J.G. has not established that the OCF-18 is reasonable and necessary.
AWARD
39Section 10 of O. Reg. 664 provides that an amount of up to 50 percent with interest on all amounts owing may be awarded if it is found that an insurer has unreasonably withheld or delayed payment of benefits. J.G. is seeking an award pursuant to s. 10 because she alleges TD unreasonably withheld or delayed payment of benefits. The threshold for an award under O. Reg. 664 is high. I do not find that an award is appropriate.
40J.G. submits that given the medical evidence provided, TD’s maintaining of the denials led to an unreasonably withholding of payment of benefits. J.G. further submits that TD failed to provide its assessors with the full medical record of Dr. Devi and the treating neurologist, Dr. Gawel. She points to the fact that TD provided its s. 44 psychologist Dr. Seon with Dr. Devi’s records, as proof that TD should have circulated the records to all of its assessors.
41While I agree that any medical history records in TD’s possession should be provided to its assessors, I do not find that this meets the threshold for granting an award. In addition, TDs assessors provided addendum reports, and in some instances, more than one addendum. Further, TD approved an OCF-18, and there is no requirement for an explanation for approving a treatment plan, even if the approval came 2.5 years later. TD relied on the reports of its assessors, as is within its right to do, and made its determinations accordingly.
42I find that TDs actions did not constitute an unreasonably withholding or delaying of payment of benefits, because its determinations were based on the consistent recommendations of its assessors. As mentioned above, the threshold for an award is high. An alleged error in the handling of medical records does not meet the threshold for an award. TD took appropriate actions when provided with additional medical documentation. I find TDs actions are not indicative of unreasonably withholding or delaying payment of benefits. Therefore, J.G. is not entitled to an award.
COSTS
43As a discretionary remedy, costs are awarded where a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Tribunal’s Common Rules. In considering whether the test for costs has been met, the Tribunal may consider the seriousness of the alleged misconduct, whether the conduct was in breach of a Tribunal order, or whether the parties’ actions interfered with the Tribunal’s ability to carry out a fair, efficient, effective process. In addition, the Tribunal may consider whether there was prejudice to the other parties as a result of misconduct, and the impact of a cost award on individuals engaging in the Tribunal process.
44J.G. requested a cost award in the amount of $3,000 plus HST due to “TD’s unreasonable and bad faith denials.” J.G. made no submissions on the issue of costs, other than to note the request in her submissions. TD made no response to the issue of costs and in reply, J.G. appears to allege that TD’s failure to provide certain medical records to all of its s. 44 assessors was “grossly negligent or constitutes wilful blindness”, therefore she is deserving of a cost award.
45TD based its denials on the opinions of its assessors and when provided with updated records, obtained addenda reports in the spirit of its duty to continually adjust its file. I am not persuaded that TD’s actions amount to the standard set out in the test for costs. Accordingly, I find that a costs award is not appropriate.
INTEREST
46As I have found benefits payable, J.G. is entitled to all applicable interest in accordance with s. 51 of the Schedule.
CONCLUSION
47For the reasons above, I find that J.G. is entitled to the following:
a. Post-104 IRBs for the period of June 14, 2019 to date and ongoing. Interest is payable pursuant to s. 51.
b. Payment for the OCF-18 for a neuro-psychological cognitive assessment, including interest.
48J.G. is not entitled to the following:
a. No ACBs are payable as there is no proof of incurred. No interest is payable as there are no outstanding payments.
b. The OCF-18 for a speech language pathology assessment is not payable as J.G. has not established that the assessment is reasonable and necessary. No interest is payable.
c. An award or costs are not payable.
Released: December 2, 2021
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.