Citation: Sookram vs. Zenith Insurance Company, 2021 ONLAT 19-012732/AABS

Released: January 15, 2021

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:

Rayon Sookram

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Sherzod Karimov, Counsel

For the Respondent:

Stacey Morrow, Counsel

HEARD:

By way of written submissions

1The applicant was injured in an automobile accident on October 9, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 9, 2018, to date and ongoing?
Is the applicant entitled to $4,602.42 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated October 23, 2018?
Is the applicant entitled to $3,474.99 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated December 12, 2018?
Is the applicant entitled to $1,782.00 for other goods and services, recommended by 101 Physio in a treatment plan (OCF-18) dated January 2, 2019?
Is the applicant entitled to $2,565.38 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated October 1,2019?
Is the applicant entitled to $2,460.00 for a Chronic Pain Assessment, recommended by 101 Physio in a treatment plan (OCF-18) dated September 30, 2019?
Is the applicant entitled to $2,460.00 ($2,000.00 approved, $460.00 in dispute) for a Cognitive Assessment, recommended by 101 Physio in a treatment plan (OCF-18) dated September 24, 2019?
Is the applicant entitled to $2,460.00 for a Psychological Assessment, recommended by 101 Physio in a treatment plan (OCF-18) dated January 3, 2019?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

4The applicant is not entitled to an NEB.

5The applicant is not entitled to any physiotherapy services.

6The applicant is not entitled to a Functional Ultrasound of the shoulders and wrist.

7The applicant is not entitled to a Chronic Pain Assessment.

8The applicant is not entitled to a Cognitive assessment.

8The applicant is not entitled to a Psychological Assessment.

9The applicant is not entitled to an award or to any interest. The extra expense of $460.00 is owed by the respondent.to the applicant.

BACKGROUND

10The applicant attended William Osler Health Centre two days after the accident, on October 9, 2018, complaining of neck swelling, pain radiating to his lower back and swelling in his upper arm. X-rays performed of his cervical, lumbar and thoracic spine showed no abnormalities.¹ Right knee issues affecting his walking and going up and down stairs where reported by the applicant to his family doctor one year prior to the accident. At the time of the accident, the applicant was working as a general labourer at Rapid Auto Solutions.

11The applicant attended at his family doctor Dr. Kakzanov on October 20, 2018, with the same complaints set out above, but with the additional complaints of headache and issues with negotiating stairs. The applicant had a pre-existing right knee problem that affected his going up and down stairs.² Dr. Kakzanov opined that the injuries were soft-tissue injuries.

12The applicant has attended physiotherapy on October 16, 2018 and on February 7, 2019.

13The applicant claims that before the accident, he had a job, his own apartment, did all his own household chores and activities, worked at a gym, jogged, swam, played cricket and participated in a number of community-based events and travel.³

14After the accident, the applicant claims that he was not able to work, that he lost his apartment, was no longer able to work out at a gym, jog, swim or play cricket. He was forced to move in with his brother and live in the basement of his brother’s house. The applicant also claims that he could no longer assist in household maintenance and regular chores of daily living.⁴

15The applicant reported to Dr. A. Belfon, general practitioner, during an Insurers Examination (“IE”) on December 20, 2018, that he was independent with self care activities. Dr Belfon diagnosed the applicant with soft tissue injuries.⁵ These findings were repeated in Dr. Belfon’s subsequent IE report dated January 22, 2019.⁶

16In his IE report dated February 21, 2019, Dr. Lee, psychologist, did not find any presence of symptomology for a psychological diagnosis. He reported that the applicant was not seeking any psychological treatment following the accident.⁷ The same findings were reported in a subsequent report dated March 5, 2019.⁸ The applicant also reported no physical limitations to his cooking.

ANALYSIS

NON-EARNER BENEFIT

17Section 12(1) of the Schedule sets out the criteria for an NEB, being that the insured person suffers a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident, and does not qualify for an income replacement benefit. This is achieved if the applicant is found incapable of performing substantially all of his pre-accident activities.

18In Heath v. MacLeod, 2009 ONCA 391, the Court of Appeal stated that the NEB test requires a comparison of the applicant’s pre-accident and post-accident life, and the ability of the applicant to engage in their pre-accident activities.

19Under section 35 of the Schedule, if an application indicates that the applicant may qualify for two or more of an income replacement benefit (“IRB”), an NEB and the caregiver benefit, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he must elect within 30 days after receiving the notice the benefit he wishes to receive.

20The applicant’s Application for Accident Benefits (OCF-1) dated November 5, 2018, indicated that he was employed at Rapid Auto Solutions. On November 7, 2018, the respondent sent written correspondence to the applicant indicating that the applicant was not entitled to an NEB since he was employed at the time of the accident.⁹ The respondent was not required therefore to give further notice under section 35 to the applicant, as there were no options for the applicant to choose from.

21The applicant attended an Examination Under Oath on April 3, 2019. The parties agree that at this examination, the applicant abandoned his claim for IRBs. The respondent claims to have not been informed at this time that the applicant intended to pursue his claim for NEB. The respondent submits that it has been unable to arrange section 44 examinations to determine possible entitlement to a NEB once the respondent found out that the applicant was proceeding on the NEB claim, thereby rendering the respondent disadvantaged and prejudiced.

22This Tribunal has held that an applicant will not be deemed incapable of performing substantially all of their pre-accident activities, if they are found to be capable of performing at least 50% of their pre-accident activities.¹⁰

23I have difficulty with the applicant’s position on his pre-accident physical activities, which he claims to have engaged in. He submits that he was having problems with his right knee, and with walking, one year before the accident. In my view, this would have affected his physical pre- and post-accident activities which he claimed to participate in, like working at a gym, jogging, swimming, playing cricket and participating in a number of community-based events. I find there is not enough medical evidence to review in order to compare what the pre-accident medical injuries were and how the accident exacerbated, if at all, those pre-accident issues. The applicant did not provide a breakdown of how much time each activity took pre and post accident. The applicant did not identify his most valued activities pre and post accident.

24The applicant reported to Dr. Belfon that he was independent with his personal care activities and to Dr. Waxer, a psychologist, that he continues to engage in pre-accident hobbies that include watching movies, watching sports, listening to a variety of music, reading newspapers and magazines.¹¹

25I find that the applicant has not proven on a balance of probabilities that he is incapable of performing substantially all of his pre-accident activities. I find that the evidence submitted by the applicant does not show that he is incapable of performing at least 50% of his pre-accident activities. Accordingly, I find he has not demonstrated that he has a complete inability to carry on a normal life as a result of the accident.

26I also find that the applicant has not addressed the factor: “and does not qualify for an income replacement benefit” which I find has not been satisfied. The applicant was working at the time of the accident and should have proceeded with that benefit claim. He has met part of the eligibility under section 5 of the Schedule with his working at the time of the accident and may have qualified completely, once examinations had been completed. I acknowledge that the employment status is only one part of the test for qualifying for an IRB, with the additional requirement the applicant must show that he meets the relevant disability standard.

27The Ontario Court of Appeal has held¹² that an employed person may only claim NEBs if mobility is not a requirement of the job (which it was for the applicant as a general labourer) and the job was not of great importance to the applicant’s pre-accident life. The Court of Appeal deemed this to be a rare occurrence. I find that there is no evidence before me by the applicant, that his employment was not of great importance to his pre-accident life.

28For the above reasons I find that the applicant is not entitled to any NEB.

Is the applicant entitled to $4,602.42 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated October 23, 2018?

Is the applicant entitled to $3,474.99 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated December 12, 2018?

Is the applicant entitled to $2,565.38 for physiotherapy services, recommended by 101 Physio in a treatment plan (OCF-18) dated October 1, 2019?

29Sections 15 and 16 of the Schedule requires all medical and rehabilitation benefits to be reasonable and necessary in the furthering of the recovery of the insured, before they are required to be paid.

30The applicant’s submissions focus on the respondent’s breach of section 38 of the Schedule and the issue of whether the applicant’s injuries are within the MIG. The applicant was taken out of the MIG on July 24, 2019, so the issue of MIG is irrelevant. Whether or not the respondent has breached section 38 does not relieve the applicant of proving that the benefits sought are reasonable and necessary.¹³

31Regarding the $4,602.42 treatment plan dated October 16,2018, the respondent did send a denial on October 29, 2018, as a completed OCF-1 had not been completed at that time. A further denial was also sent dated November 7, 2018, pending the results of a section 44 assessment. Regarding the $3,474.99 treatment plan dated December 12, 2018, a denial was sent by the respondent on December 13, 2018, based on Dr. Belfon’s findings in his report dated December 10, 2018. Regarding the $2,565.38 treatment plan, dated October 1, 2019, a denial of this treatment plan was provided by letter dated October 2, 2019 pending a section 44 assessment

31The applicant has also attended physiotherapy on October 16, 2018 and on February 7, 2019. The functional ultrasound dated March 5, 2019 only found evidence of left shoulder tendinopathy, a soft-tissue injury that is captured by the diagnosis of sprain and strain injuries to the applicant’s shoulders.¹⁴ Dr. Kakzanov and Dr. Belfon also opined, that the injuries were soft-tissue injuries.

32There is no evidence before me that shows, on a balance of probabilities, that the proposed plans for physiotherapy services would further the recovery of the applicant’s physical injuries.

33I find that the applicant has not met his onus to prove that the treatment plans are reasonable and necessary.

Is the applicant entitled to $1,782.00 for other goods and services, recommended by 101 Physio in a treatment plan (OCF-18) dated January 2, 2019?

34This treatment and assessment plan was for a Functional Ultrasound of the shoulders and wrist. The applicant already had a functional ultrasound on March 5, 2019 that found soft-tissue injury. There has been no evidence that the applicant suffered wrist issues as a result of the accident. The applicant has, in any event, admitted that his wrist injury healed in three months.

35I find that the applicant has not proven that the proposed treatment plan is reasonable and necessary.

Is the applicant entitled to $2,460.00 for a Chronic Pain Assessment, recommended by 101 Physio in a treatment plan (OCF-18) dated September 30, 2019?

36In his report dated September 2, 2020, Dr. Gofeld, a chronic pain specialist, diagnosed the applicant with chronic pain syndrome, chronic neck pain, chronic left shoulder pain.¹⁵

37There is no medical evidence put before me to justify a further Chronic Pain Assessment.

38I find that it is not reasonable and necessary to have a further Chronic Pain Assessment completed.

Is the applicant entitled to $2,460.00 for a Cognitive Assessment, recommended by 101 Physio in a treatment plan (OCF-18) dated September 24, 2019?

39There is no medical evidence from the William Osler Health Centre that discloses that the applicant suffered any neurologic injury from the accident. There is no evidence from the applicant that he hit his head during the accident.

40The applicant’s family doctor, Dr. Kakzanov, provided no medical records to show that the applicant had a traumatic brain injury, resulting from the accident. He did raise the possibility of a traumatic brain injury but noted only the issue of the applicant complaining about headaches.

41Dr. Lee and occupational therapist Remik Zakrzewski noted that the applicant complained about poor concentration and short-term memory. However, Dr. Lee, in his Insurer’s Examination Report, did not find any presence of symptomology for a psychological diagnosis.

42There is not enough medical evidence before me to show that the applicant suffered a neurological impairment caused by the accident, which would justify having a Cognitive Assessment.

43I find that the treatment plan therefore is not reasonable and necessary.

Is the applicant entitled to $2,460.00 for a Psychological Assessment, ($2,000.00 approved, $460.00 in dispute) recommended by 101 Physio in a treatment plan (OCF-18) dated January 3, 2019?

44Section 25(5) of the Schedule indicates that an insurer shall not pay more than a total of $2,000.00 in respect of fees and expenses for conducting any one assessment. This Tribunal has consistently found that HST and the form completion costs are outside the $2000.00 limit.

45I find that the extra expense of $460.00 is owed by the respondent.to the applicant.

AWARD

46Section 10 of section 280 of the Act permits the Tribunal to make an award against an insurer, if the insurer has unreasonably withheld or delayed payments.

47I find that the respondent has not unreasonably withheld or delayed payments, as no benefits are owing.

INTEREST

48There is no interest owing under section 51, as no benefits are overdue.

CONCLUSION

49For the reasons set out above, the application is dismissed, with the exception of the insurer paying the $460.00.