Release date: 09/29/2021
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:
Patrick Grant
Applicant
and
Belair Direct Insurance
Respondent
DECISION
ADJUDICATOR:
Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Applicant:
Joshua Nightingale, Counsel
For the Respondent:
Lazina Khan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Patrick Grant (“applicant”) was involved in an automobile accident on May 11, 2018 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1
2Belair Direct Insurance (“respondent”) determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3 (1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”).2 The respondent stopped paying income replacement benefit (“IRB”) to the applicant effective September 3, 2019 when it determined him ineligible.
3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).
ISSUES
4The issues to be decided are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?3
ii. Is the applicant entitled to an IRB of $380.64 per week, from September 3, 2019 to date and ongoing?
iii. Is the applicant entitled to $3,245.94 for chiropractic services, recommended by Brampton Civic Care in a treatment plan (OCF-18) dated November 20, 2018?
iv. Is the applicant entitled to $2,681.88 for chiropractic services, recommended by Brampton Civic Care in a treatment plan (OCF-18) dated February 11, 2019?
v. Is the applicant entitled to $2,486.00 for the cost of psychological assessment recommended by Q Medical in a treatment plan (OCF-18)?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is not entitled to an IRB in the amount of $380.64 per week, or in any other amount, for the period in dispute. The applicant is not entitled to the three disputed treatment plans for $3,245.94, $2,681.88 and $2,486. No interest is payable. The application is dismissed.
LAW
IRB
6An 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, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. 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? After 104 weeks post-accident the test for eligibility for IRB changes.
7The onus is on the applicant to establish entitlement to IRB on a balance of probabilities.
Medical and Rehabilitation Benefits
8Sections 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.
9The 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 Entitled to IRB in the amount of $380.64 per week from September 3, 2019 and ongoing?
10The applicant submits he stopped working after the accident because of the injuries he sustained. The applicant received IRB until September 3, 2019 when the respondent determined him to be ineligible. The applicant claims IRB from that date and ongoing, a period including both 104 weeks after the accident and post 104 weeks. The applicant also submits that the respondent’s denial letter dated September 6, 2019 is improper because it cited the non-earner benefit (“NEB”) test for eligibility instead of the IRB test for eligibility.
11The respondent submits that it paid IRB based on $380.64 per week to the applicant from May 18, 2018 to September 3, 2019 in good faith even though the applicant submitted his OCF-1 and OCF-3 late. The respondent submits that the applicant was working in 2019 because his 2019 income tax return shows unexplained income of nearly $27,000.00, if he stopped working in September 2018 it was not as a result of the accident but due to a flare up of gout and home and family stresses, and that the applicant has failed to prove entitlement to IRB.
12The respondent also submits that the applicant was overpaid IRB in the amount of $6,470.88 because IRB was paid to the applicant starting May 18, 2018 although the record of employment from his employer shows his last day of work was September 12, 2018. Although repayment has been requested, there has been no repayment even though the applicant admits in his submissions that he was paid from May 18, 2018 to September 12, 2018, a period during which he was working.
What were the essential tasks of the applicant’s employment?
13According to the record of employment dated October 11, 2018, the applicant was employed at the time of the accident as a line worker at Sofina Foods Inc. (“employer”) until September 12, 2018. The employer’s OCF-2 dated January 4, 2019 contains no information at all under the heading “Essential Tasks of Job”.
However, it does not appear in dispute that the applicant worked handling and processing meat in a factory setting which is physically demanding work.
Does the applicant suffer a substantial inability to complete the essential employment tasks?
First 104 Week IRB
14Further, I find that the applicant is not eligible for IRB based on a lack of medical evidence establishing he has substantial inability to complete the essential tasks of his pre-accident employment.
15The applicant’s medical records show that he gave varying accounts of his ability to work to different physicians. For example, he reported to Dr. Getahun, his physician, that he returned to work six weeks after the accident. To Dr. Melnyk he reported that he returned to work immediately after the accident and lasted one month to six weeks. To respondent’s physiatrist Dr. Sivasubramanian, he reported he was off for two weeks after the accident. To respondent’s physician Dr. Stewart he reported he was off work for three days after the accident.
16It is clear from the applicant’s record of employment that he worked at his full-time pre-accident until September 12, 2018, approximately four months post-accident.
17The applicant saw Dr. Johar, his family physician, on May 17, 2018 and reported left knee and left ankle pain. The applicant saw Dr. Johar again on June 22, 2018 and self-reported left knee and left ankle pain persisting. According to the applicant’s record of employment, he was working during these summer months in 2018. There are no further issues until the applicant saw Dr. Johar on September 13, 2018, the day after he stopped working, and self-reported swelling in his right hand and gout which caused pain and difficulty walking. Dr. Johar does not note any back pain or left sided pain at this time.
18In his application to Blue Cross for short-term disability dated September 20, 2018, the applicant left blank the section of the application which is asked “if your condition is due to an accident, provide the date and details of the accident.” The attending physician statement submitted to Blue Cross on September 24, 2018 give the primary diagnosis of anxiety and acute stress disorder and secondary diagnosis as MDD, chronic back pain with DDD and knee pain and indicates these symptoms first appeared on September 10, 2018, some four months post-accident. No functional limitations or restrictions are noted in the section of the application inquiring about sitting, standing, walking, lifting, carrying or bending and no reference to the accident is made.
19On November 6, 2018 Dr. Johar notes that lower back pains, worse on the right side, are possibly triggered by the accident or back surgery in 2008. Given that the applicant self-reported left sided pain, this note, even taken together with Dr. Johar’s May 29, 2018 record and her other records, is insufficient to establish the applicant’s substantial inability to complete the essential tasks of his pre-accident employment as a result of the accident. Dr. Johar does not refer the applicant to Brampton Civic Care Centre for treatment until December 2018, some seven months post-accident and in February 2019, some nine months post-accident.
20Although Dr. Johar writes notes addressed to the applicant’s counsel on December 10, 2018, March 1, May 2, June 13, and September 24, 2019 indicating the applicant is not able to work, Dr. Johar appears to attribute this to the applicant’s various chronic physical and psychological issues and his family and personal stressors, not to the accident. Dr. Johar does not mention the accident in any of these notes and does not mention any left knee or elbow injuries or any other injuries arising from the accident.
21The applicant attended CannaWay Clinic for CBD oil in mid-2019 as a result of chronic back pain and chronic pain. The accident is not mentioned. No left elbow or left knee injuries are noted. In the Catholic Family counselling notes various personal and family issues are mentioned but not the accident or any injuries allegedly suffered in the accident.
22The November 22, 2018 OCF-3, disability certificate, by Dr. Barnes, applicant’s chiropractor, is insufficient to establish that the applicant has a substantial inability to complete the essential tasks of his pre-accident employment, although Dr. Barnes indicates that the applicant meets this test and anticipates a duration of disability of nine to twelve weeks. Firstly, Dr. Barnes cannot diagnose the injuries listed because she is not a physician. Secondly, Dr. Barnes gives no explanation of how the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident. Thirdly, Dr. Barnes in the disability certificate gives no indication that she is aware that the applicant in fact worked until September 12, 2018. Fourthly, Dr. Johar’s records do not sufficiently support a causal connection between the applicant’s inability to work and the accident and therefore do not support the conclusion reached by Dr. Barnes. Lastly, Dr. Barnes indicates she first examined the applicant on November 20, 2018 and her knowledge of the applicant’s medical condition in the first six months post-accident cannot be based on first-hand knowledge and examination.
23I prefer the evidence of Dr. Sivasubramanian, based on his specialized medical education, training and experience, who opined that from a psychiatric perspective, the applicant is able to resume his pre-accident employment without restriction or accommodation, that his specific phobia or adjustment disorder symptoms would be significantly occupationally impairing, there are no tasks that he would be unable to perform, and his traffic-related psychiatric disorders would be considered temporary. In short, Dr. Sivasubramanian opined that from a purely psychiatric perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
24I also prefer the evidence of Dr. Stewart whose review specifically addressed IRB. Dr. Stewart opined on April 17, 2019 that the applicant would be able to perform the essential tasks of his employment post-accident with no restrictions or accommodations. Dr. Stewart reconfirmed his opinion on October 5, 2020.
25The opinions of Dr. Sivasubramanian and Stewart are substantially consistent with the functional abilities evaluation by Dr. Kaufman in April, 2019 who concluded that from an isometric perspective, the applicant demonstrated the ability to work at medium/heavy levels and from a dynamic lifting perspective, the applicant demonstrated the ability to work at sedentary levels. Dr. Kaufman opined that that based on the applicant’s observed performance, his abilities were likely greater than what was demonstrated.
26I find unpersuasive on the facts of this particular case the applicant’s submission that the respondent’s denial letter dated September 6, 2019 is improper because it cited the NEB test for eligibility instead of the IRB test for eligibility. While one of the paragraphs of this letter did cite the NEB test instead of the IRB test for eligibility, this is an obvious error given that the next paragraph gives further detail for the reason for stoppage of IRB which speaks to the applicant’s work and the option for him to apply for NEB. Further, I find it is not unclear that IRB was stopped and why when this letter is read in context of the respondent’s correspondence on IRB eligibility including it’s letters dated May 15, 2019, October 7, 2020, notices of the insurer examinations (“IEs”) for IRB and resulting IE reports which refer to IRB eligibility criteria correctly. In the end, the respondent’s September 6, 2019 letter makes it clear that the applicant has been determined by the respondent not to be entitled to IRB, the medical reason for the stoppage, sets out the procedure for the applicant to dispute the denial and warns of the two year time limitation, a situation factually distinct from the case cited by the applicant.4
27In totality, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for IRB. Even if there may be some tasks of his employment that the applicant might not be able to return to as a result of the accident, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. The onus of proof is on the applicant and I find that he has failed to meet it.
Post-104 Week IRB
28As the applicant has not satisfied his burden of substantiating entitlement to pre-104-week income replacement benefit, the post-104-week income replacement benefit test of complete inability to engage in any employment cannot be met.
Is the Applicant Entitled to $3,245.94 and $2,681.88 for Chiropractic Treatment?
29The applicant submits that these November 2018 and February 11, 2019 proposed treatment plans both made by the applicant’s chiropractor Dr. Singh are reasonable and necessary. The respondent’s position is the opposite. The fact that the applicant has now been removed from the MIG does not relieve the applicant of the onus to establish that the proposed treatment plans and psychological assessment are reasonable and necessary.
30I find that the applicant is not entitled to these disputed treatment plans because the applicant has not provided sufficient evidence to meet his burden of proof that they are reasonable and necessary as a result of injuries suffered in the accident.
31Although the respondent’s correspondence to the applicant establishes that $2,200.00 was pre-approved, the applicant has not provided any clinical treatment records or OCF 21 invoices establishing that he has undergone any physiotherapy or chiropractic treatment post-accident, tending to indicate that physical therapy is not reasonable and necessary.
32Although the applicant submits that both of these disputed treatment plans were partially funded by Blue Cross, there is insufficient evidence that the applicant attended any of this physical treatment.
33There is little support for these disputed treatment plans from Dr. Johan, the applicant’s family physician.
34To the contrary, respondent’s assessor Dr. Stewart opined in his January 2019 that the applicant initially sustained uncomplicated soft tissue injuries in the accident, and has achieved full functional recovery from these injuries and the $3,245.94 treatment plan is neither reasonable or necessary. Dr. Stewart confirmed his opinion in a further report dated October 5, 2020. I prefer the evidence of Dr. Stewart over that of Dr. Johan because Dr. Johan specifically considered whether the disputed treatment plan is reasonable and necessary as a result of the accident.
35The $2,681.88 treatment plan appears substantially similar, to the $3,245.94 treatment plan, indicating that it is likely a duplication of services. The applicant has not established otherwise.
36Further, there is little evidence as to how the proposed treatment plans will achieve their goals or evidence establishing that the proposed treatment plans are reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary except from Dr. Singh, the author of the disputed treatment plans. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of reasonableness and necessity.
Is the Applicant Entitled to $2,486.00 for Psychological Assessment?
37The applicant submits that this disputed psychological assessment is reasonable and necessary. The respondent’s position is the opposite.
38I find that the applicant is not entitled to this psychological assessment because he has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary as a result of injuries suffered in the accident. This July 10, 2019 treatment plan proposes psychological assessment, mental health and addictions by Anna Kozina, psychologist.
39The applicant’s records indicate he has pre-existing psychological issues and stressors related to his family that are not accident related. The counselling that the applicant attends at Catholic Family Services appears to relate to family issues and generally feeling unwell. This is not enough to establish that this treatment plan is reasonable and necessary.
40I prefer the evidence of respondent’s psychiatrist Dr. Sivasubramanjan who opined on September 3, 2019 that specific psychological treatment is not necessary as a result of the accident and concluded that the applicant’s pre-existing attention deficit disorder and low-normal intelligence make him a poor psychotherapy candidate. In reaching this opinion, Dr. Sivasubramanjan lists in his report the wide range of the applicant’s medical and other records, including records from Dr. Johar. Dr. Sivasubramanjan, confirmed his conclusion remained unchanged in October 2020. I prefer the evidence of Dr. Sivasubramanjan over that of Dr. Johar because of Dr. Sivasubramanjan’s specialized education, training and experience and that his opinion was re-confirmed in 2020.
41As a result, I find the goals, treatment proposed, and cost of this psychological assessment is not reasonable and necessary.
Interest
42As no benefits are payable, no interest is payable.
ORDER
43For the above reasons, I find that the applicant is not entitled to an IRB in the amount of $380.64 per week, or in any other amount, for the period in dispute. The applicant is not entitled to the three disputed treatment plans for $3,245.94, $2,681.88 and $2,486. No interest is payable. The application is dismissed.
Released: September 29, 2021
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
- The respondent is not taking the position that the applicant’s injuries are within the MIG and therefore it is not necessary for me to determine this issue. See: Written Submissions of the Respondent, Belair Direct Insurance, dated January 13, 2021, para 54.
- Smith v. Cooperators General Insurance Co., [2002] 2 S.C.R. 123 (SCC).