Licence Appeal Tribunal
Release date: 09/23/2021
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:
Mohamed Al-Aassam
Applicant
and
The Co-Operators
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Patrick Baker, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on February 10, 2018, and sought psychological benefits and an income replacement benefit (“IRB”) from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Co-Operators denied the IRB on the basis that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident occupation and denied treatment because the treatment proposed was not reasonable and necessary. The applicant applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
a. Is the applicant entitled to an IRB in the amount of $217.09 per week from February 10, 2018 to date and ongoing?
b. Is the applicant entitled to $2,102.80 for a psychological assessment recommended by Fix and Fitness in a treatment plan dated May 24, 2019?
c. Is the applicant entitled to $3,699.44 for psychological services recommended by Fix and Fitness in a treatment plan dated June 28, 2019?
d. Is the applicant entitled to interest on the overdue repayment?
RESULT
3The applicant has not demonstrated entitlement to an IRB or either of the OCF-18s in dispute and therefore no benefits are payable. As no benefits are overdue, no interest is payable under s. 51.
ANALYSIS
IRB entitlement
4In order to receive payment for an IRB under the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
5The applicant has fallen well-short of meeting his burden. While he correctly identified the legal test and submitted an OCF-2 from November 2018 which was purportedly prepared by a manager from “Jude 3f Inc. (ALFAWAL)” in Mississauga, his submissions do not actually identify the type of employment or position that would support an IRB payment or, critically, identify the tasks he cannot substantially perform or the extent to which they functionally disable him as a result of the accident.
6Problematically, the record of employment attached to the OCF-2 states that he worked as a general labourer between November 20, 2017 and February 11, 2018 and was terminated due to a shortage of work and not as a result of injuries sustained in the accident. However, as Co-Operators points out, the applicant also did not provide a job description to support his claim and there are no details of the applicant’s essential tasks as a labourer. I agree with Co-Operators that the Tribunal is left with no insight into the essential tasks of the applicant’s employment or insight into what the applicant allegedly cannot do, which is the test he must meet. Complicating the analysis is the fact that the OCF-3 in evidence states that the applicant is a part-time cook, however, there is no evidence or submissions to support or verify this employment either.
7Where it is the applicant’s burden to prove entitlement, the Tribunal cannot presume to know the essential tasks of his employment as either a general labourer or cook or how these tasks are impaired by the psychological or physical injuries sustained in the accident. The applicant has failed to satisfy every branch of the legal test. While the OCF-3 does state that he meets the disability test for an IRB, I agree with Co-Operators that it also explicitly states that he can return to work with less hours and the injuries identified are all sprain and strain injuries with no mention of psychological impairment. Further, it is uncontested that the OCF-3 was not submitted until October 6, 2018, which means that even if the applicant had demonstrated entitlement, under s. 36(3), Co-Operators would not be liable to pay an IRB for this period until the date the OCF-3 was submitted.
8In any event, I find the applicant has not met his burden to prove that he suffered a substantial inability to perform the essential tasks of his employment as a result of and within 104 weeks after the accident. Therefore, no IRB is payable for the period in dispute and no interest applies.
Are the psychological treatment plans reasonable and necessary?
9To receive payment for medical and rehabilitation benefits under the Schedule, the applicant must demonstrate that the proposed treatment is reasonable and necessary. Here, the applicant seeks funding for two OCF-18s that propose a psychological assessment (incurred on May 29, 2019) and psychological treatment stemming from same. To this end, the applicant relies on several diagnoses: Ms. Trevino/Dr. Bodnar’s diagnosis of adjustment disorder with mixed anxiety and depressed mood, specific phobia (driver and passenger) and the resulting recommendation that the applicant undergo psychological treatment; Dr. Muhammad’s March 29, 2019 diagnosis of major depressive disorder, moderate intensity, single episode and subsequent prescriptions for Zoloft, Zopiclone and Cipralex; and Dr. Rehman’s August 2, 2019 diagnosis of adjustment disorder with depressed and anxious mood and suggestion that the applicant may benefit from Cipralex or therapy for his depression.
10Co-Operators asserts that the treatment plans are not reasonable and necessary because they are a duplication of services. It submits that the applicant has been treated and followed by two OHIP-funded physicians, being Dr. Muhammad and Dr. Dehman. Co-Operators argues that the applicant was first assessed by Dr. Muhammad on March 29, 2019, which is two months prior to the s. 25 assessment that is in dispute. Further, it argues that the applicant has been regularly treated by Dr. Muhammad, a psychiatrist, since his initial consultation, so there is no basis to support further therapy sessions with a psychotherapist and there has never been a recommendation for same.
11While there is seemingly no dispute that the applicant has been diagnosed with psychological impairments requiring treatment, I agree with Co-Operators that the OCF-18s in dispute are not reasonable and necessary. The clinical notes and records from Dr. Muhammad spanning March 2019 to September 2020 evidence regular OHIP-funded treatment and appointments for follow up. Dr. Muhammad’s diagnosis pre-dates the s. 25 report, remains consistent over this period and there are several indications that the applicant was not keeping up with his medication, prompting involvement by Dr. Halka. In evidence is also the August 2, 2019 consultation report of Dr. Dehman from Credit Valley Hospital, who largely echoed Dr. Muhammad’s diagnosis and, notably, did not recommend ongoing treatment or make a referral to a psychotherapist, but rather opined that the applicant may benefit from SSRIs or therapy for his depression, both of which he was already receiving.
12Further, the applicant has not explained why it was reasonable and necessary to seek a s. 25 report from Ms. Trevino/Dr. Bodnar during the same period he was receiving OHIP-funded treatment for an existing diagnosis or why he then attended for an OHIP-funded consultation with Dr. Dehman several months after undergoing a s. 25 assessment. I find this is especially so where the s. 25 report revealed a diagnosis similar to the one that Dr. Muhammad had already made (and Dr. Dehman later confirmed) and for which he was being monitored and counselled for. I agree that the s. 25 report was a duplication of the efforts of both Dr. Muhammad and Dr. Dehman and is therefore not a reasonable expense.
13Regarding treatment, while there is one mention in December 2019 that the applicant is having nightmares about the accident, there is limited evidence in the notes that the applicant’s ongoing depression is linked to the subject accident. The notes of Dr. Muhammad state that treatment sessions were provided to the applicant, first monthly and then seemingly reduced to an as-needed basis in mid 2020. I was not directed to evidence that the applicant incurred any of the treatment proposed by the s. 25 assessment or in the OCF-18 in dispute or that treatment with a different professional was needed or even desired.
14Further, the applicant’s submissions did not articulate how the goals of the proposed treatment would be met or why over $3,600 (including $950 in forms and planning) is a reasonable cost when he was receiving OHIP-funded therapy contemporaneously. Indeed, it appears on the evidence that the applicant was receiving OHIP-funded treatment with Dr. Muhammad during this period of time and his submissions did not explain how the proposed sessions would differ or better achieve the goals stated in the plan. In my view, this suggests that the treatment proposed is not reasonable and necessary as it is a duplication of services and costs.
15Accordingly, I find the applicant has not demonstrated that either OCF-18 in dispute is reasonable or necessary. As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
16The applicant has not demonstrated entitlement to an IRB or either of the OCF-18s in dispute and therefore no benefits are payable. As no benefits are overdue, no interest is payable under s. 51.
Released: September 23, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.