Citation: Dimalanata v. Aviva General Insurance, 2021 ONLAT 20-000032/AABS

Released Date: 07/13/2021

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:

Katriz Dimalanata

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Maria Makarova, Counsel

For the Respondent:

Amanda Faulkner, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

1The applicant was involved in an automobile accident on January 18, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided are:

i. Is the applicant entitled to an income replacement benefit of $394.25 per week from August 26, 2019 to date and ongoing?

ii. Is the applicant entitled to $1,996.50 for a neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated August 2, 2019?

iii. Is the applicant entitled to $3,022.51 for chiropractic services recommended by Scarborough Health and Wellness in a treatment plan (OCF-18) dated October 2, 2019?

iv. Is the applicant entitled to $2,255.49 for a chronic pain assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated November 29, 2019?

v. Is the applicant entitled to $1,998.32 for an attendant care assessment neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated June 26, 2019?

vi. Is the applicant entitled to an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULTS

3The applicant is not entitled to an income replacement benefit of $394.25 per week from August 26, 2019 to date and ongoing.

4The applicant is not entitled to $1,996.50 for a neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated August 2, 2019.

5The applicant is not entitled to $3,022.51 for chiropractic services recommended by Scarborough Health and Wellness in a treatment plan (OCF-18) dated October 2, 2019.

6The applicant is not entitled to $2,255.49 for a chronic pain assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated November 29, 2019.

7The applicant is not entitled to $1,998.32 for an attendant care assessment neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated June 26, 2019.

8The applicant is not entitled to an award or interest.

BACKGROUND

9The applicant was involved in an accident on January 18, 2019. She was stopped at a red light when she was rear ended. On February 5, 2019, the applicant saw her family doctor, Dr. Patel, complaining of neck pain radiating downwards in her lower back, and headaches. Dr. Patel diagnosed the applicant with whiplash strain, and recommended massage, physio and exercises.¹

10The applicant had been in a previous accident on July 7, 2018. She experienced from that accident: low back pain, neck pain bilateral shoulder pain, depression, anxiety, insomnia and headaches which were ongoing at the time of the accident at issue.²

11The applicant worked as a data entry clerk at Healthy Planet. Her main duties were to enter data into the system, cross-referencing invoices to match, typing and talking on the phone.³ The applicant tried to return to work after the accident but was unable to do so.⁴

12The applicant saw Dr. A. Nalli, chiropractor, on February 25, 2019. He diagnosed her with post-concussion syndrome, WAD-2, sprain and strain of thoracic spine, lumbar spine and pelvis, shoulder stain, and opined that she was unable to resume her employment.⁵

13The applicant saw Dr. Fahimeh Aghamohseni, psychologist, on June 13, 2019, who diagnosed the applicant with Major Depressive Disorder, Single Episode, in the severe range, with anxious distress, Somatic Symptom Disorder, with predominant pain, in the persistent range at severe levels. Dr. Aghamohseni noted that the applicant “has a substantial mental impairment that has been continuous for approximately five months and is not expected to change in the foreseeable future. Her impairment directly results in a substantial restriction in her ability to effectively work.⁶

14Natalya Khamohsova, RN, on July 24, 2019 completed an Attendant Care Assessment of the applicant. She identified the applicant with physical abilities limitations with her personal care. The applicant received PSW services until February 2020.⁷

15Dr. R. Soric, physiatrist, in a section 44 report dated November 28, 2019, opined that: there was no evidence of physical impairment and that the applicant had soft tissue injury; there was no contraindication for her to perform her job as a data entry clerk and she does not suffer a substantial inability to perform the essential tasks of her employment; further facility-based treatment is no longer warranted as the applicant feels better after treatment but for a short time after and that she does not need further treatment for her personal care duties.⁸

16Dr. N. Yahmad, neurologist, in her report dated November 28, 2019 noted: that the applicant was independent in all her personal activities of daily living; reported neck pain headaches, and low back pain and did not complain of any cognitive difficulties or memory problems. Dr. Yahmad opined that the headaches were cervicogenic headaches that were musculoskeletal in nature, and that there was no specific neurological diagnosis detected.⁹

17Dr. Syed, psychologist, in a report dated November 28, 2019, noted that there was no objective evidence to show that the applicant suffered a substantial inability to perform the essential tasks of her employment, and does not require an aid to assist her with her personal care duties.¹⁰ A. Sasani, occupational therapist, in the same report noted that she does not need attendant care assistance.¹¹

Is the applicant entitled to an income replacement benefit (IRB) of $394.25 per week from August 26, 2019 to date and ongoing?

18I find that the applicant is not entitled to continued IRB from August 26, 2019 to date and ongoing for the reasons set out below.

19Section 5 and 6 of the Schedule provide that an insured who sustains an impairment as a result of an accident and is employed at the time of the accident, is entitled to an IRB, if within 104 weeks of the accident she suffers a substantial inability to perform the essential task of her employment. After the 104 weeks, the IRB is paid if the insured suffers a complete inability to engage in any employment for which she or he is reasonably suited by education, training or experience.

20The applicant was paid IRB up to November 29, 2019 and now claims the IRB from November 30, 2019 to date and ongoing.

21The applicant’s position is that the applicant cannot work due to low back pain restricting her ability to sit for prolonged periods of time which her previous job required; her lack of ability to now focus for long periods of time and her psychological conditions. She relies on the report of Dr. Fahimeh Aghamohseni.

22The applicant Received EI sickness benefits from September 15, 2019 to December 28, 2019 and received benefits from Ontario Works and CERB.¹²

23The respondent’s position is that the IE assessors determined that there was no evidence of any impairment from a physical, neurological or psychological perspective that would prevent the applicant from substantially being unable to perform the essential tasks of her pre-MVA clerical position as a data entry clerk.

24The respondent also noted that the applicant’s family doctor clinical notes showed on October 16, 2019, the family doctor refused to complete her IRB forms because they related to her August symptoms and she had not seen her doctor since then.¹³

25I accept the reports of Dr. Soric, Dr. Yahmad, Dr.Syed over the reports of Dr. Aghamohseni and Dr. Nalli, because their assessments are over five months later and show no impairments from a physical, neurological or psychological perspective that would prevent the applicant from substantially being unable to perform the essential task of her pre-MVA clerical position as a data entry clerk.

26The applicant’s family doctor also refused to complete her IRB forms because he also felt that the applicant showed no impairments from a physical, neurological or psychological perspective that would prevent the applicant from substantially being unable to perform the essential tasks of her pre-MVA clerical position as a data entry clerk. This position is reinforced by the opinions taken by Dr. Soric, Dr. Yahmad, Dr.Syed. This evidence leads me to believe that the applicant has no accident related impairments that would prevent her from returning to work in order to qualify for IRBs post-104 weeks.

Is the applicant entitled to $1,996.50 for a neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated August 2, 2019?

27I find that the applicant is not entitled to $1,996.50 for a neurological assessment for the reasons set out below.

28Section 15 of the Schedule requires all medical benefits to be reasonable and necessary and incurred before they have to be paid. Section 3(7)(e) of the Schedule defines incurred as being received and paid for, a promise to pay the expense or the applicant is legally obligated to pay the incurred benefit.

29The applicant’s position is that since the applicant has various issues such as headaches, sleep problem, difficulty to concentrate at work, movies and difficulty sitting for prolonged times, she requires a neurological assessment.

30The respondent’s position is that Dr. Yahmed found no accident-related neurological impairment and therefore the treatment plan is not reasonable and necessary. The respondent also relies on the fact that the applicant incurred no expenses as defined under section 3(7) of the Schedule and required for payment by s. 15.

31I agree with the respondent by accepting the report of Dr. Yahmed, who opined that there are no accident-related neurological impairments. I also agree that the applicant has not incurred the treatment and has not demonstrated that it is reasonable and necessary.

Is the applicant entitled to $3,022.51 for chiropractic services recommended by Scarborough Health and Wellness in a treatment plan (OCF-18) dated October 2, 2019?

32I find that the applicant is not entitled to $3,022.61 for a chiropractic assessment for the reasons set out below.

33The applicant’s position is that the respondent failed to respond to the application under section 38(8) of the Schedule, and therefore the treatment plan should be paid. The applicant also argues that the plan’s goals would help the applicant with her back pain thereby helping her to return to work and is therefore reasonable and necessary.

34The respondent’s position is that the treatment plan was denied on October 7, 2019 and once the IE was completed on November 13, 2019, was denied in an Explanation Of Benefits letter dated November 29, 2019. The respondent therefore met the requirements of section 38(8). The respondent relies on the report of Dr. Soric who found that there was no evidence of a physical impairment resulting from the accident. Dr. Soric also opined in his report that the chiropractic treatment only helped the applicant temporarily and therefore further facility-based treatment was no longer warranted. The applicant also relies on section 3(7)(e) of the Schedule that no expense has been incurred as required by the Schedule.

35I agree with all of the respondent’s submissions and find that the proposed treatment plan is not reasonable and necessary relying on the report of Dr. Soric.

Is the applicant entitled to $2,255.49 for a chronic pain assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated November 29, 2019?

36The applicant’s position is that she has suffered pain for eight months after the accident and has exhausted all treatment options given to her by her doctor. The applicant’s position is that she needs this assessment in order to determine what other rehabilitation options there are for her to reduce the pain that she is experiencing.

37The respondent’s position is that the IE report of November 29, 2019 indicates that the applicant had reached maximum medical recovery from a psychological, neurological, physical, and occupation therapy perspective. The respondent also relies on the fact that the plan has not been incurred as required under section 3(7) of the Schedule and that she has not provided evidence that she suffers from chronic pain.

38I agree with the respondent’s position. Also as set out in paragraph [25] above, there appears to be no functional reason why the applicant cannot go back to work because of her pain. The applicant’s family doctor has also not recommended further pain assessments. There is therefore no valid reason to have a chronic pain assessment. I find that it is not reasonable and necessary.

Is the applicant entitled to $1,998.32 for an attendant care assessment neurological assessment recommended by Paramount Medical in a treatment plan (OCF-18) dated June 26, 2019?

39The respondent agreed to pay this incurred amount on January 12, 2021.¹⁴ This therefore is no longer an issue.

AWARD

40The Tribunal may issue an award under Section 10 of Regulation 664 against the respondent, if it finds that the respondent has unreasonably withheld or delayed payment. As no benefits are owing, I find that the applicant is not entitled to an award.

INTEREST

41As no benefits are owing there is no interest owing.

CONCLUSION

42For the reasons set out above, the application is dismissed

Released: July 13, 2021