Licence Appeal Tribunal File Number: 20-004670/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:
Joan Allen-Harris
Applicant
and
Zenith Insurance Company
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Bashir Zahid, Counsel
For the Respondent:
Nicholas M. Wine, Counsel
HEARD:
By way of written hearing
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on March 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the ‘Schedule’)1.The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a Case Conference on November 19, 2020 but were unable to resolve the issues in dispute.
3The applicant and the respondent made written submissions, with the applicant choosing not to make reply submissions for the hearing.
ISSUES
4The parties consented to the following issues in dispute at the Case Conference:
i. Is the applicant entitled to an income replacement benefit of $400 per week from April 1, 2019 until December 31, 2019?
ii. Is the applicant entitled to $2,140.58 for physiotherapy recommended by Dr. Kashi Patel in a treatment plan (OCF-18) denied on March 12, 2020?
iii. Is the applicant entitled to $1,496.25 for physiotherapy recommended by New Motion Physio in a treatment plan (OCF18) denied on December 16, 2019?
iv. Is the applicant entitled to $1,553.84 for physiotherapy recommended by Brampton Physio in a treatment plan (OCF18) denied on February 9, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
5The applicant is not entitled to an income replacement benefit.
6The applicant is not entitled to the treatment plans in dispute.
7The applicant is not entitled to interest.
LAW
8Section 5(1)1i of the Schedule provides the eligibility criteria for qualifying for an income replacement benefit, stating that an insurer shall pay an income replacement benefit to an insured person who sustains an impairment due to the accident, so long as the insured person was employed at the time of the accident, and within 104 weeks after said accident, suffers a substantial inability to perform his/her/their essential employment tasks.
9The applicant bears the onus of demonstrating on a balance of probabilities that she is entitled to an income replacement benefit2.
10Sections 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an insured person so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the insured person applicant as a result of the accident.
Pre-104 Income Replacement Benefit (IRB) from April 1, 2019 until December 31,2019
11The applicant alleged that she is suffers a substantial inability to perform her essential employment tasks and requested IRBs for the period of within 104 weeks of the accident (“pre-104 IRB).
12After considering the evidence, based on a balance of probabilities, I was more persuaded by the respondent’s evidence than that of the applicant for the following reasons:
a. The applicant relied upon clinical notes and records (“CNRs”) from her family doctor, Dr. Karen Marshall. These CNRs3 demonstrated that the applicant has complained about her neck, lower back and shoulder pain as a result of the accident. She also complained of chronic migraine headaches4. Dr. Marshall referred the applicant to physiotherapy5.
At no point does Dr. Marshall provide medical evidence related to the applicant or her ability or inability to complete the essential tasks of her job.
b. I preferred the Insurance Examination (‘IE’) of Dr. Deborah Rabinovitch, Physiatrist, who assessed the applicant twice6 for the purpose of evaluating the applicant’s purported substantial inability in relation to IRB entitlement.
Dr. Rabinovich was unable to identify an organic pathology related to the applicant’s complaints. Dr. Rabinovitch opined that the applicant’s complaints were not indicative of a substantial inability.
Dr. Rabinovitch also suggested that the applicant should be provided with an appropriate back support for her sedentary work and that the applicant would benefit from a core-strengthening program, which Dr. Rabinovitch recommended.
c. I was also more persuaded by the Insurer’s Job Site Analysis and Functional Abilities Evaluation prepared by Dr. Harry Kaufman, Chiropractor7. Dr. Kaufman found that, given the applicant was employed in a sedentary job at the time of the accident, she should be able to resume those duties as an insurance agent, which is a primarily sedentary job.
d. The applicant also relied on two Disability Certificates (‘OCF-3’) completed by Rupesh Shah, Physiotherapist of New Motion Physio on June 11, 2018 and August 24, 2018.
The OCF-3 of August 24, 2018 states that the applicant has a substantial inability to perform the essential tasks of her employment as a result of the accident and cannot return to work on modified hours and/or duties.
However, it does not explain why the applicant can’t return to work with or without modified hours or duties. It also estimates that the applicant’s anticipated disability would last 9 to 12 weeks, or from approximately October 26, 2018 until November 16, 2018.
Based on the lack of details, I found this document less persuasive than the respondent’s medical evidence.
e. Furthermore, the applicant has not produced an updated OCF-3 beyond that mentioned above of August 2018.
The period in dispute, namely April 1, 2019 until December 31, 2019, is not eligible for an income replacement benefit since this period is not covered by a an OCF-3 submitted by the applicant. Since an OCF-3 is the basis of this application, and the applicant has not provided an updated OCF-3 for the period in dispute, her claim for IRBs cannot proceed, as she has not met her onus.
f. Finally, I was not presented with any medical evidence by the applicant that substantiates her position beyond her self-reporting to Dr. Marshall.
$2,140.58 for physiotherapy recommended by Dr. Kashi Patel, $1,496.25 for physiotherapy recommended by New Motion Physio and $1,553.84 for physiotherapy recommended by Brampton Physio
13Since all three treatment plans in dispute involve the same modalities and goals, I will address them all under one subheading.
14After considering the evidence, based on a balance of probabilities, I find that the treatment plans are not reasonable and necessary for the following reasons:
a. The applicant submitted that the treatment plans for physiotherapy are reasonable and necessary, and relied on the CNRs Dr. Marshall8, who referred the applicant to physiotherapy. This was recommended again by Dr. Marshall on December 5, 2019.
Based on these CNRs, the applicant submitted that she requires physiotherapy on a regular basis to relieve her pain. She did not provide any medial evidence that substantiates her need for physiotherapy beyond the recommendation of Dr. Marshall of December 5, 2019.
The applicant also relied on the treatment plans of New Motion Physio and Brampton Physio. These documents showed that the applicant was experiencing neck, back and shoulder pain.
b. I agreed with the respondent’s submission that the applicant has not demonstrated that the treatment plans are reasonable and necessary, as she has not demonstrated that she had medical evidence or justification for such9.
The applicant was able to provide medical evidence that her family doctor recommended physiotherapy in 2019. However, these CNRs do not address this in 2020, despite the applicant visiting the doctor during this period. Had Dr. Marshall felt more physiotherapy was appropriate in 2020, I would have expected to see this in her CNRs.
c. Instead, I preferred the respondent’s more up to date evidence, being the s. 44 assessment of Dr. Rabinovitch10. Dr. Rabinovitch opined that no further passive facility-based treatment was reasonable and necessary, as the applicant had sustained a soft tissue injury. Dr. Rabinovitch submitted that the applicant would benefit from a strengthening program.
Interest
15Since no benefits are outstanding, no interest is owing.
CONCLUSION AND ORDER
16The applicant is not entitled to an income replacement benefit.
17The applicant is not entitled to the treatment plans in dispute.
18The applicant is not entitled to interest.
Released: December 7, 2021
______-
Stephanie Kepman
Adjudicator
Footnotes
- O. Reg. 34/10 as amended.
- 16-004619 v State Farm Insurance, 2018 CanLII 13165 (ON LAT)
- Dr. Marshall’s notes of April 15, 2019 and December 5, 2019
- Dr. Marshall’s notes of September 14, 2019
- Dr. Marshall’s notes of December 5, 2019
- Dr. Rabinovitch assessed the applicant on October 17, 2018, and February 25, 2019
- Both reports dated October 30, 2018
- CNRs of Dr. Marshall dated April 15, 2019
- 17-002689/AABS v Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT)
- Dated January 31, 2020