Kazmi v. Pembridge Insurance Company, 2021 CanLII 19407

Citation: Kazmi v. Pembridge Insurance Company, 2021 ONLAT 19-010107/AABS & 20-001345/AABS

Released: March 2, 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:

Mohammad (Mehdi) Kazmi

Applicant

and

Pembridge Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Kenneth J. Williams, Counsel

For the Respondent:

Peter Yoo, Counsel

Oliver Gorman Asal, Counsel

HEARD:

by way of written submissions

OVERVIEW

1Mohammad (Mehdi) Kazmi (the “applicant”) was involved in an automobile accident on April 26, 2017 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Pembridge Insurance Company (the “respondent”) paid an income replacement benefit (“IRB”) to the applicant from May 4, 2017 to November 26, 2019 at which time it denied IRB and other benefits.

3The applicant disagreed and submitted two applications to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

4The applicant’s files 19-010107/AABS and 20-001345/AABS were combined by the Tribunal’s June 22, 2020 Order made on consent of both parties.

ISSUES

5The issues to be decided are:

i. Is the applicant procedurally entitled to receive an IRB in the amount of $291.00 per week from November 27, 2019 to date and ongoing?²

ii. Is the applicant entitled to $3,023.00 for a mattress, recommended by the Canadian Back Institute in a treatment plan (OCF-18) submitted on July 13, 2018, and denied on August 13, 2018?

iii. Is the applicant entitled to $2,179.15 for physiotherapy and assistive devices, recommended by the Canadian Back Institute in a treatment plan (OCF-18) submitted on October 12, 2017, and denied on December 15, 2017?³

iv. Is the applicant entitled to $705.75 for a medical cannabis, recommended by Body Stream in a treatment plan (OCF-18) submitted on April 4, 2018, and denied on September 12, 2018?⁴

v. Is the applicant entitled to $710.00 or $1,240.00 (amount to be determined) for chiropractic treatment, recommended by Dr. Overton in a treatment plan (OCF-18) dated November 6, 2019, and denied on February 10, 2020?

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

RESULT

6The applicant is procedurally entitled to receive an IRB in the amount of $291.00 per week from November 27, 2019 to date and ongoing. The applicant is also entitled to $3,023.00 for a mattress and to $1,240.00 for chiropractic treatment. Interest is payable on the overdue payment of benefits. The remaining issues were withdrawn by the applicant at the hearing and were not determined by me.

LAW

IRB

7Section 5(1) of the Schedule provides that the insurer shall pay an IRB to an insured who sustains an impairment as a result of an accident if the insured meets the conditions referred to below.

8“Impairment” is defined in s. 3(1) of the Schedule to mean a loss or abnormality of a psychological, physiological or anatomical structure or function.

9For the first 104 weeks post-accident, an employed person’s entitlement to an IRB falls under s. 5(1)1(i) of the Schedule. An IRB is payable if the insured was working at the time of the accident and, as a result of and within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. Thus, if the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?

10After the first 104 weeks, s. 6(2)(b) provides that an insurer is not required to pay an IRB unless the applicant is suffering a complete inability to engage in any employment for which the applicant is reasonably suited by education, experience or training.

11The onus is on the applicant to establish entitlement to an IRB on a balance of probabilities.

Section 33 - Request for Information

12Section 33 (1) of the Schedule provides that an applicant shall, within 10 business days after request from the insurer, provide any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. Section 33 (6) provides that an insurer is not liable to pay a benefit for any period during which the insured has not complied with s. 33 (1) or 33 (2). Section 33 (8), (a) and (b) provide that if an applicant who failed to comply with s. 33 (1) or 33 (2) subsequently complies, then the insurer shall resume payment of the benefit, if a benefit was being paid and shall pay all amounts withheld during the period of non-compliance if the applicant provides a reasonable explanation for the delay in complying.

13Sections 14, 15 and 16 of the Schedule provide 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 of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Is the Applicant Procedurally Entitled to an IRB in the amount of $291.00 per week as claimed?

14At the time of the accident the applicant was employed as an assistant manager at a gas bar and also self-employed as a food delivery driver. Both parties agree that substantive entitlement to an IRB is not an issue.

15The applicant submits that he complied with the respondent’s s. 33 requests made June 3, 2019 and October 7, 2019 but the respondent has failed to acknowledge compliance and its continued denial of an IRB is unreasonable.

16The respondent submits that the applicant is not procedurally entitled to an IRB under s. 33 (6) of the Schedule because he failed to adequately answer and provide the respondent with documentation requested pursuant to s. 33.

17I find that the applicant is procedurally entitled to an IRB because he has adequately complied with the respondent’s s. 33 requests.

18On June 3, 2019 the respondent made a s. 33 request for three items. The first item requested was a Permission to Disclose Health Information Form, (OCF-5), for the records of the applicant’s family physician, Dr. Nizami, from February, 2012 to June 1, 2013. The respondent acknowledges that these records were produced on July 18, 2018.⁵

19The two other items requested were an OCF-5 for the records of Dr. de Silva from July 17, 2013 to November 1, 2013 and “complete clinical notes and records regarding the assault and injury to your neck from October 1, 2018 to present”.⁶ The respondent submits that these two requests were not adequately answered by the applicant.

20The applicant complied with the request for Dr. de Silva’s records by his counsel providing to the respondent on July 18, 2019 a copy of counsel’s letter to Dr. de Silva dated July 11, 2019 faxed back from Dr. de Silva’s office with a handwritten note “not our patient – thankyou!”. The respondent’s argument that the applicant saw Dr. de Silva at another clinic and as a result the applicant should have sent the letter to Dr. de Silva at another clinic instead of to Dr. de Silva’s office, is unpersuasive. The respondent’s argument that the applicant should have signed an OCF-5 anyway is also not persuasive. It is reasonable to presume that Dr. de Silva knows who his patients are and is the best source of information as to who his patients are. The applicant’s letter to Dr. de Silva was returned with a definitive negative answer. It is unreasonable to expect the applicant to sign an OCF-5 in these circumstances. Further, the decoded OHIP summary on which the respondent relies shows the applicant saw Dr. de Silva in 2012, which pre-dates the period for which the respondent requested production of Dr. de Silva’s records.

21The applicant complied with the request for “complete clinical notes and records regarding the assault and injury to your neck from October 1, 2018 to present” by providing the records of Dr. Nizami, his chiropractor and ultimately the hospital emergency department records. As it turned out, the applicant had gone to the hospital emergency department following an assault in October, 2018 and mistakenly did not produce these records until applicant’s counsel produced them to the respondent in August, 2020. I find the explanation put forward for the late production of these records reasonable. In the context of the respondent’s other s. 33 requests, the late production of these records is not material enough to constitute a breach of s. 33.

22On October 7, 2019 the respondent requested two additional items. The first item requested was an OCF-5 for Dr. Nizami’s records from April 13, 2019 to present. The respondent acknowledges that on October 15, 2019 Dr. Nizami’s records from August 20, 2018 to May 14, 2019 were produced and that on November 27, 2019 Dr. Nizami’s records from May 14, 2019 to October 17, 2019 were produced.⁷

23The other item requested was a complete copy of the applicant’s Ontario Works/Welfare File, including all correspondence, medical and received income. The respondent submits that this request was not adequately answered by the applicant.

24The applicant complied with the request for his Ontario Works/Welfare file by his counsel confirming on July 18, 2019 that the applicant did not ever apply for or receive Ontario Works benefits. The applicant’s counsel also wrote to Dr. Nizami requesting a correction to his September 14, 2018 clinical note which indicates the applicant was receiving Ontario Works support. Dr. Nizami provided a correction to his clinical note for September 14, 2018 indicating that he has confirmed with the applicant that he has never been on financial support from Ontario works and that Dr. Nizami had misunderstood an IRB to be Ontario Works support. This was sent to the respondent November 28, 2019. Ultimately, when the respondent refused to accept the applicant’s answer, the applicant’s counsel also obtained confirmation from Ontario Works that the applicant had not received these benefits.

25Based on the totality of the evidence, I find that the applicant adequately complied with all of the respondent’s s. 33 requests and is procedurally entitled to IRB as claimed.

26The IA⁸ case relied on by the respondent is not helpful here. It is not binding on me but, more importantly, turned on a finding by the adjudicator of that applicant’s complete non-compliance with s. 33 by ignoring requests and the lack of reasonable explanation for failures or delays. That is not the case here. I have found that the applicant complied with the s. 33 requests and further that reasonable explanation was made for any delays.

The Post-104 Week Test: Does the applicant suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, experience or training?

27Given that both parties have agreed that there is no issue as to entitlement, it is unnecessary for me to determine the applicant’s entitlement to a post-104-week IRB.

Is the Applicant Entitled to $3,023.00 for a mattress?

28The applicant submits that Adam Ly, his occupational therapist, and Dr. Nizami have recommended the mattress and that it is reasonable and necessary. The treatment plan proposes a $2,800.00 mattress plus documentation costs of $65.00 plus tax of $338.00 for a total of $3,023.00.

29The respondent submits that the recommended mattress is not reasonable and necessary and that the recommendations of Mr. Ly and Dr. Nizami for a mattress are vague and do not provide evidence or explanation about why the mattress is reasonable and necessary. The respondent also relies on its assessor Kelly Wendt, occupational therapist, who reported after assessing the applicant that a new mattress was not reasonable and necessary.

30I find that the applicant is entitled to the payment of the disputed treatment plan for a mattress because he has established, on a balance of probabilities and with sufficient medical evidence, that it is reasonable and necessary.

31The goal of the treatment plan is to alleviate the applicant’s pain and improve sleep. Mr. Ly’s report states that given the applicant’s chronic back pain and the soft support mattress, he may benefit from a mattress with medium firmness. Dr. Nizami, who as the applicant’s family physician likely knows him best, diagnosed chronic lower back pain and other injuries as a result of the accident and wrote to the respondent asking it to consider funding a firm mattress in order to treat the applicant’s pain symptoms which in turn would assist with the applicant’s depression symptoms. These records taken together establish that the mattress is reasonable and necessary.

32This treatment plan for a mattress was proposed some 14 months post-accident and was reasonably proximate in time to the accident when it was proposed.

33The respondent’s submission that, based on the report of Kelly Wendt dated September 27, 2018, the mattress is not reasonable and necessary is not persuasive. Ms. Wendt found that the applicant demonstrated functional range of motion and strength in all body segments. This conflicts with the records of Dr. Nizami, the applicant’s physician, as well as the report of Mr. Ly. I prefer the records of Dr. Nizami, a physician, over that of Ms. Wendt on this medical issue. Further, Ms. Wendt focussed on the applicant’s self-reporting about the age of his mattress in coming to her conclusion. The issue I have to decide is whether the proposed mattress is reasonable and necessary based on medical evidence, not whether the applicant wishes to have a new mattress. I give the records of Dr. Nizami and Mr. Ly’s reports in support of the requested mattress greater weight than the report of Ms. Wendt.

34Considering the totality of the evidence, I find that the applicant has provided sufficient medical evidence to meet his burden of proof that the disputed treatment plans are reasonable and necessary. The goals listed in the treatment plan are reasonable and necessary. The cost of the proposed treatment plan appears reasonable.

Is the Applicant Entitled to $710.00 or $1,240.00 for chiropractic treatment?

35The applicant submits that the December 3, 2019 disputed treatment plan for chiropractic treatment made by Dr. Overton, chiropractor, is reasonable and necessary. The treatment plan proposes an assessment for $70.00 and 26 sessions at $45.00 per session for a total cost of $1,240.00, with the goals of pain reduction, increased range of motion, return to activities of normal living and return to pre-accident work activities.

36The respondent submits that the applicant’s evidence does not establish that this chiropractic treatment is reasonable and necessary. The respondent relies on the opinion of its physiatrist, Dr. Clifford who found this proposed treatment not reasonable and necessary.

37I find that the applicant is entitled to $1,240.00, the full amount proposed, for this proposed chiropractic treatment because it is reasonable and necessary in the opinion of Dr. Nizami, the applicant’s treating physician.

38While Dr. Clifford opines that the applicant’s injuries from the accident have long since healed and the applicant has reached maximum medical recovery, his opinion primarily addresses the applicant’s physical condition. Both Dr. Overton and Dr. Nizami relate the chiropractic treatment to the applicant’s need for pain relief to assist with psychological symptoms. Taken together, the weight of their evidence is sufficient to establish that this chiropractic treatment is reasonable and necessary.

39On review of this treatment plan, I find that the goals listed are reasonable and necessary goals for the applicant’s treatment. In the treatment plan it is noted that the applicant experiences pain with moderate restriction in flexion and right lateral flexion, that the applicant reports that chiropractic adjustments help with his mobility and mood and that the applicant’s psychological state is affecting and affected by his physical condition. Dr. Nizami supported the need for this chiropractic treatment in his July 23, 2019 letter to the respondent requesting the reinstatement of funding for chiropractic care as a means to address treatment for pain symptoms which in turn would assist with the applicant’s depression symptoms.

40Based on the above, I find that the applicant has experienced enough improvement as a result of this treatment plan that it is reasonable and necessary to allow his chiropractic treatment to be continued for the full amount proposed.

41I find that the overall cost of achieving these goals is also reasonable. The costs of the plan appear to be in line with the Schedule.

Interest

42Interest is payable in accordance with s. 51 of the Schedule.

ORDER

43For the above reasons, I find that the applicant is procedurally entitled to receive an IRB in the amount of $291.00 per week from November 27, 2019 to date and ongoing. The applicant is also entitled to $3,023.00 for a mattress and to $1,240.00 for chiropractic treatment. Interest is payable on the overdue payment of benefits. The remaining issues were withdrawn by the applicant at the hearing and were not determined by me.

Footnotes

1. 1O. Reg. 34/10.
2. 2The Tribunal’s June 22, 2020 Order confimrs that the parties agree substantive entitlement is not an issue.
3. 3This issue was withdrawn in the aapplicant’s written submissions para 4.
4. 4This issue was withdrawn in the applicant’s written submissions para 4.
5. 5The respondent’s written submissions dated October 5, 2020 para 10.
6. 6The respondent’s letter to the applicant dated June 3, 2019, in the respondents written submissions dated October 5, 2020, tab d.
7. 7The respondent’s written submissions dated October 5, 2020 para 11.
8. 8I.A. v. TTC Insurance Company Limited, 2019 CanLII 63358 (ON LAT).