Samra v. Zenith Insurance Company, 2022 CanLII 11143

Citation: Samra v. Zenith Insurance Company, 2022 ONLAT 20-003287/AABS

Licence Appeal Tribunal File Number: 20-003287/AABS

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:

Ravinder Samra

Applicant

and

Zenith Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Jamie Min, Counsel

For the Respondent:

Jennifer McGlashan, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Ravinder Samra, was involved in an automobile accident on November 27, 2017, and sought benefits from the respondent, Zenith Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent approved some of the applicant's claims and denied others. The applicant applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

PRELIMINARY ISSUE

3The respondent has raised the following preliminary issue:

a. Is the applicant is barred from proceeding with his claim for income replacement benefits for failing to submit to an insurer's examination under section 44 of the Schedule?

4The parties agreed to have this issue heard together with the substantive issues in dispute.

SUBSTANTIVE ISSUES

5The substantive issues to be decided in the hearing are:

a. Is the applicant entitled to physiotherapy treatment recommended by Gibson Wellness Centre in the amount of:

i. $3,165.00 in a treatment plan (OCF-18) submitted May 31, 2018 and denied on June 6, 2018?

ii. $3,785.20 in a treatment plan (OCF-18) submitted November 18, 2018 and denied on December 2, 2018?

iii. $3,690.10 in a treatment plan (OCF-18) submitted July 17, 2018 and denied on May 8, 2019?

b. Is the applicant entitled to psychological treatment recommended by Gibson Wellness Centre in the amount of $4,688.38 in a treatment plan (OCF-18) submitted April 18, 2018 and denied on May 2, 2018?

c. Is the applicant entitled to chiropractic treatment recommended by Gibson Wellness Centre in the amount of $3,208.50 in a treatment plan (OCF-18) submitted August 16, 2018 and denied on September 5, 2018?

d. Is the applicant entitled to an occupational therapy in-home assessment recommended by Gibson Wellness Centre in the amount of $2,000.00 in a treatment plan (OCF-18) submitted August 16, 2018 and denied on December 12, 2018?

e. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

6Section 55 of the Schedule does not bar the applicant from proceeding with his application before the Tribunal. The applicant is entitled to the disputed physiotherapy treatment, chiropractic treatment, and occupational therapy in-home assessment plus interest calculated in accordance with the Schedule. The applicant has not proven entitlement to the disputed psychological treatment. There is no award.

ANALYSIS

No grounds for barring the applicant under s. 55 of the Schedule

7The respondent submits that the applicant failed to make himself reasonably available to an insurer's examination as required under s. 44(9)2(iii) of the Schedule, and that he should therefore be barred from proceeding with an application before the Tribunal. In the alternative, the respondent submits that the applicant should be barred from proceeding with a claim for an income replacement benefit.

8I am not prepared to bar the applicant from pursuing a future claim for an income replacement benefit. Income replacement is not currently in dispute before the Tribunal. There is nothing preventing the applicant from curing any alleged non-compliance with s. 44 by attending another insurer's examination to contest the termination of his income replacement benefit in the future. It would be premature and an excess of jurisdiction to bar the applicant from adjudicating a denial that is not the subject of a dispute under s. 280 of the Insurance Act.

9I am also unprepared to bar the applicant from proceeding with his current application for accident benefits under s. 55 of the Schedule. The respondent submits the applicant has a long history of non-attendance at insurer's examinations, but upon careful review of the evidence, that long history comes down to two insurer's examinations that the respondent submits the applicant failed to make himself reasonably available for: a psychological assessment with Dr. Clewes on June 29, 2020 and a Functional Abilities Assessment on May 24, 2018. Both examinations related to the applicant's ongoing entitlement to an income replacement benefit. Again, that issue is not in dispute before me. The applicant underwent numerous insurer's examinations in relation to his claims for medical benefits. Indeed, the respondent relies on several of these examinations to show that it was correct in denying the disputed medical benefits. There is no basis to conclude that the respondent was prevented from assessing or responding to the medical benefit claims the applicant advances in the present application.

10If I am wrong that the present application should not be barred because of non-compliance with s. 44 requests unrelated to the issues in this application, I still conclude that the bar in s. 55 does not apply. For the reasons set out below, I find that the applicant made himself reasonably available for the requested insurer's examination with Dr. Clewes on June 29, 2020, and that there is insufficient evidence to establish, on a balance of probabilities, non-attendance at a May 24, 2018 Functional Abilities Assessment. For reasons I explain below, the evidence does not establish that the applicant was non-compliant with the other s. 44 requests referenced in the respondent's submissions.

The examination with Dr. Clewes was rescheduled because of the COVID-19 pandemic

11The respondent submits that the June 29, 2020 examination with Dr. Clewes, a psychologist, was initially scheduled to take place on March 12, 2020, and that the applicant failed to attend. It submits the applicant only gave notice on March 13, 2020 that he was unavailable. The respondent relies on an email exchange between its adjuster and the applicant's representative about rescheduling the examination. The email exchange before me is incomplete: it refers to earlier correspondence, not in evidence, about the scheduling of the examination. The evidence tendered on this issue does not establish the full circumstances surrounding the initial scheduling of this examination.

12Additionally, a letter from the respondent to the applicant, dated July 14, 2020, suggests that the June 29, 2020 examination was rescheduled not as a result of the applicant's failure or refusal to cooperate with the respondent's requests, but because of the COVID-19 pandemic. By letter dated July 14, 2020, the respondent stated that it had:

"attempted several times to schedule [the June 29, 2020] assessment which had been rescheduled multiple times due to [sic] COVID-19 emergency."

[Emphasis added.]

13This letter contradicts the respondent's submission that the applicant failed to make himself reasonably available to be examined by Dr. Clewes before June 29, 2020. I cannot conclude based on the records before me that on March 12, 2020, the applicant failed to comply with a request under s. 44 of the Schedule.

The applicant made himself reasonably available

14I find that the June 29, 2020 examination was terminated on the initiative of Dr. Clewes. According to her June 30, 2020 report, the applicant attended punctually on June 29, 2020 for Dr. Clewes' psychological assessment. The report establishes that the applicant expressed his distrust in the process and in Dr. Clewes' independence. Dr. Clewes' report states that because she was unable to establish an "adequate therapeutic alliance" with the applicant, she terminated the assessment.

15The respondent rescheduled the assessment with Dr. Clewes for November 23, 2020. An email from the assessment company in March of 2021, roughly four months later, states that the examination did not proceed because applicant "was swearing" and Dr. Clewes "did not want to assess [him] again".

16The respondent submits that on June 29, 2020, the applicant attempted to intimidate Dr. Clewes, and that she terminated the November 23, 2020 assessment due to safety concerns. Neither of these submissions is supported by the evidence. First, the only record of what occurred at the June 29, 2020 assessment is Dr. Clewes' June 30, 2020 report. In it, Dr. Clewes makes no mention of being intimidated by the applicant. There is no evidence that he obstructed the process. Second, the submission that the November 23, 2020 assessment was terminated due to safety concerns is unsubstantiated. The only account of the events of November 23, 2020 is an email from an employee of the assessment company sent to the respondent months after the assessment date. The email states that the applicant was swearing but makes no mention of safety concerns. It is unclear whether the author of the email was present for the interaction, and no additional context is provided.

17The respondent submits that the applicant's non-compliance with its s. 44 requests is consistent with his "longstanding history of abusive behaviour towards health providers," his record of involvement with the criminal justice system, and behavioural issues dating back to his childhood. The respondent submits that the applicant "habitually mistreats medical personnel" and that it is unclear how retaining an assessor other than Dr. Clewes for the second assessment would have yielded a different result. These submissions malign the character of the applicant based on remote social history that is only marginally relevant to the applicant's compliance with the Schedule. I find these submissions unpersuasive.

18Insurer's examiners do not act in a treatment capacity. Indeed, most assessors take pains to distinguish their role from that of a treating practitioner in obtaining the consent of the insured to be examined. The existence of a "therapeutic alliance" between an assessor and an insured is not necessary for an examination to proceed. The respondent's position in this litigation raises the larger concern that insured persons who may be vulnerable due to psychological impairments could be barred from proceeding with their claims if they express distrust the s. 44 examination process. Questioning the independence of an examiner does not, on its own, constitute non-compliance with a s. 44 request.

19No assessor should be expected to tolerate abuse. However, there is no evidence before me that the applicant was violent or threatening towards Dr. Clewes. A level of professional sensitivity should be shown to vulnerable insured persons who, while seeking accident benefits, may express distrust or frustration with the process.

The record does not establish a history of non-attendance at insurer's examinations

20The respondent submits that the applicant has a long history of non-attendance at insurer's examinations. It refers me to an email exchange about an insurer's examination in June 2018 that it submits the applicant did not attend. In that case, email correspondence shows that the applicant gave notice of his non-attendance hours before the assessment, citing his recent receipt of bad news about a family member. Though the notice of cancellation was short, I find that the applicant provided a reasoned explanation for his non-attendance. At the time, the respondent also appeared to accept this explanation because it rescheduled the assessment.

21Other incidents of non-attendance occurred in the summer of 2018 when the applicant was recovering from a heart attack. The respondent submits that it is not relying on his non-attendance at the examinations in the summer of 2018.

22The only other instance of alleged non-compliance is a May 24, 2018 Functional Abilities Assessment, which the respondent submits the applicant failed to attend without explanation. As evidence of this failure to attend, the respondent relies on an unsigned document tabbed as "OCF-1 dated April 1, 2018" and titled "Correspondence Attachment for Explanation of Benefits dated April 1, 2018".

23I am unable to place weight on this document. The text of the document refers to an attached OCF-9, but no attachment has been filed. The related OCF-9 may have assisted in making sense of why, in this document dated April 1, 2018, reference is made to a series of future attempts the respondent purportedly made to schedule the Functional Abilities Assessment. The entries include dates ranging from May 24, 2018 to March 6, 2019. It is unclear when, by whom, and for what purpose this document was prepared. The disconnect between the date of the document and the dates it contains lessens its probative value. It does not establish non-compliance with the Schedule.

24The respondent has failed to establish the applicant's non-compliance with s. 44 of the Schedule on a balance of probabilities. The applicant is not barred from proceeding with his application for accident benefits and I make no order barring him from a future claim for an income replacement benefit. The substantive issues in dispute will be considered on their merits.

The applicant complied with the Tribunal's production orders

25In addition to the preliminary issue, the respondent raises the issue of the applicant's failure to produce certain medical and legal records. I have reviewed the Tribunal's September 21, 2020 Case Conference Report and Order and I find that the applicant has complied with the Tribunal's production orders. The respondent seeks productions that fall outside the date ranges specified in the Tribunal's order. The applicant submits that he was not ordered to produce records from the time periods cited by the respondent and that, in any event, they are too remote to be relevant to the issues in dispute. The respondent has not established non-compliance with a Tribunal order, and I draw no adverse inference from the non-production of the records it cites in its submissions.

The accident directly caused the applicant's impairments

26The respondent submits that the causation of the applicant's back pain is in doubt. It submits that in an accident a decade ago, when the applicant crashed while operating a forklift likely caused a more serious injury than the applicant is willing to admit. This submission lacks force for three reasons. First, the respondent's submissions as to the probable severity of the injury are not evidence. Second, there is no evidence to support the assertion that the severity of injury caused by the forklift accident was greater than what the applicant was willing to admit. The applicant did not attempt to conceal this prior accident; he openly admitted it to his family doctor and to several assessors. Third, the medical evidence before me suggests that the applicant was not actively suffering from back pain before the subject accident. The only reference to the forklift accident in the clinical notes and records of Dr. A. Bahri, the applicant's family physician, is in relation to the applicant's past medical history. There is no mention of the forklift accident the records of Dr. Mohammed Khan, the physical medicine and rehabilitation specialist who was treating the applicant's back pain. The respondent's own assessor, Dr. Harry Kaufman, concluded from the medical documentation that this 2006 work injury had "long ago resolved".

27The respondent's submissions on the causation issue suffer from a more significant flaw: they misapprehend the test for causation in the accident benefits context. An applicant need not show that the accident was the sole cause of his impairments; he need only show that it was a direct cause.² This means that even if the accident exacerbated the applicant's pre-existing lumbar spine injury, he would be entitled to claim accident benefits for his impairment. And while the liability of a insurer for accident benefits is not limitless, s. 15(1) of the Schedule is clear that where an applicant has shown that medical benefits represent expenses that are reasonable and necessary as a result of the accident, the insurer shall pay for those expenses.

28I find that the test for causation is met in this case. The accident directly caused the applicant's physical and psychological impairments.

The disputed medical benefits are reasonable and necessary

29The applicant bears the onus of establishing entitlement to the medical benefits in dispute. Section 15 of the Schedule requires him to show, on a balance of probabilities, that the disputed treatment and assessment plans represent reasonable and necessary expenses as a result of the accident.

30The respondent submits that the only evidence tendered by the applicant in support of his claims is based on subjective complaints, that there is no objective evidence of physical impairment to support those complaints, and that the applicant only sought medical attention twice after the accident. Frankly, these submissions are incompatible with the medical record before me. The record clearly establishes the applicant's chronic low back pain and psychological impairment as a direct result of the accident.

31The clinical notes and records of Dr. Bahri make frequent reference to the applicant's post-accident condition. The applicant's first post-accident visit to Dr. Bahri occurred on November 30, 2017. Between November 2017 and the summer of 2019, when the clinical notes and records before me end, Dr. Bahri and consulting physicians document the applicant's persistent accident related pain complaints. Dr. Bahri assessed the applicant during multiple visits to his office, making objective clinical findings consistent with the applicant's reported history. He makes varied treatment recommendations, prescribes medications, and makes referrals to specialists to address the applicant's accident related pain complaints. Dr. Bahri repeatedly identifies the accident of November 2017 as relevant medical history and a current medical problem.

32The respondent's own assessor, Dr. Ian Harrington, an orthopedic surgeon, observed that the applicant's history of chronic pain and psychological concerns are likely to prolong his recovery from what Dr. Harrington described as the applicant's "uncomplicated spine injury", consisting of mild degenerative changes (disc bulging) in his lumbar spine, documented in a March 13, 2019 MRI. The respondent's characterization of the medical evidence is not only discordant with Dr. Bahri's records, it contradicts the evidence of one of its own assessors.

The applicant has proven entitlement to physiotherapy and chiropractic treatment

33The disputed physiotherapy and chiropractic treatment are reasonable and necessary as a result of the accident. The clinical notes and records of Dr. Bahri establish this. The disputed plans were submitted between May and November 2018, when the applicant was actively receiving care from his family physician and consulting specialists for his accident-related pain. The plans set out reasonable treatment goals, including pain reduction, increased, strength, and increased range of motion. The benefit the applicant derived from routine physical therapy is documented in the records of Dr. Bahri, Dr. Lau, and Dr. Wong, who continued to recommend this form of treatment as recently as January of 2020.

34The respondent relies on the expert opinions of Dr. Yuri Marchuk, who concludes in a March 15, 2019 report that the applicant's condition had plateaued, and that the physiotherapy proposed in the May 31, 2018 treatment plan would not assist with healing. In a May 3, 2019 paper review, Dr. Marchuk opined that the applicant's lumbar spine disc bulging was likely pre-existing. The respondent also relies on the report of Dr. Harry Kaufman, a chiropractor, also dated March 15, 2019, in which he opined that there was no objective organic pathology to substantiate the Applicant's subjective pain complaints.

35Neither Dr. Marchuk nor Dr. Kaufman reference Dr. Bahri's clinical notes and records in their reports. These documents may not have been available for their review. Both assessors' opinions clash with the impairments documented by Dr. Bahri. It is clear from the OHIP records that the applicant did not suffer mere uncomplicated soft tissue injuries in the accident. I must attach limited weight to Dr. Marchuk and Dr. Kaufman's diagnoses.

36The respondent submits that it should not be required to pay for the November 2018 treatment plan because it proposed acupuncture, treatment that the applicant told Dr. Harrington he was reluctant to participate in because of his heart condition. I am not persuaded by this submission. Whether the applicant ultimately consents to acupuncture treatment and whether he has clearance from his specialists to participate in specific modalities are matters for him to discuss with his treating practitioners. These issues are not relevant to the question of whether the proposed treatment was reasonable and necessary at the time the plans were proposed.

37The respondent submits that the July 2018 treatment plan was submitted without the applicant's consent because he was in the hospital recovering from a heart attack at the time. The applicant suffered a heart attack on June 25, 2018. He sought treatment in the emergency department and was discharged the same day. There is reference in the record to a subsequent cardiac surgery, but respondent has not pointed me to hospital records showing an in-patient stay at the time the plan was submitted.

The applicant has not established entitlement to the proposed psychological treatment

38The medical evidence convincingly establishes that the applicant sustained psychological impairments as a result of the accident. The respondent's own assessor diagnosed the applicant with accident-related psychological impairments. The respondent submits, however, that it approved $5,137.22 in psychological treatment proposed in a treatment plan dated October 1, 2018. The respondent submits that although Dr. Fiati advised by phone that the applicant had attended all prior treatment sessions, it has received no invoices to show that the applicant had attended for this treatment. The applicant did not address this issue in his reply submissions. There is no documentary evidence to show that the applicant availed himself of the approved treatment. Without this evidence, I cannot find on a balance of probabilities that the specific treatment proposed by the provider named in the plan is reasonable and necessary.

The applicant has established entitlement to an in-home occupational therapy assessment

39The applicant has established that at the time this treatment and assessment plan was submitted, there was a reasonable possibility that he required attendant care. Therefore, he is entitled to the proposed assessment.

40The respondent conducted its own in-home occupational therapy assessment of the applicant, performed by Ms. Vinita Tandon, on September 25, 2018. Although Ms. Tandon opined that the applicant had adequate physical and cognitive abilities to independently perform his personal care tasks, she also documented his reports that he avoids lifting, climbing stairs, pushing and pulling and that he has pain with stooping, crouching, kneeling and reaching since the accident. Ms. Tandon observed the applicant carrying a 5-pound weight, pushing and pulling a 12.5-pound weight, stooping to ankle level, and reaching with his arms at various heights. During her assessment, the applicant could not kneel or perform a full squat. Ms. Tandon did not review his OHIP records in preparing her report.

41In my view, considering the impairments documented by the applicant's family doctor and consulting specialists, his limited performance in the functional testing conducted by Ms. Tandon establishes the need for further assessment. During activity tolerance testing, the applicant's observed ability to perform certain tasks differed from his reported ability. Testing constraints like duration and degree of intensity are limited in comparison to daily routines. Even within those limited constraints, the applicant still failed to exhibit full functionality. The applicant is entitled to be assessed in-home by an occupational therapist of his choosing.

The applicant has not established grounds for an award

42The conduct of the respondent in handling the applicant's file is in some ways perplexing. However, it does not rise to the level of conduct required for an award under Regulation 664. To be granted an award, an insured person must be able to show that an insurer unreasonably denied or delayed the payment of benefits through conduct that is described in the Financial Services Commission of Ontario case of Plowright v. Wellington Insurance Co.³ as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

43Some of the respondent's conduct in adjusting his file and in litigating this matter could be considered insensitive or inappropriate. Among the comments the respondent's adjuster made on the disputed treatment plan for psychotherapy services were that it "does not make any logical sense what-so-ever" and that the diagnosis it contained made "no logical sense". The tone of this denial is dismissive, especially considering the respondent's own assessor had found the applicant to be suffering from serious psychological impairments.

44In submissions to the Tribunal, the respondent has attempted to impugn the applicant's credibility by suggesting that he exhibits a pattern of abusive behaviour. The respondent even refers me to evidence of behavioural challenges dating back to the applicant's childhood. It sought to introduce evidence of other aggressive behaviour that was equally remote.

45However, I do not find that the respondent's conduct rises to the level of an award. The comments and decisions made in the adjustment of the file did not, in my view, contribute to unreasonable denials or delay in the payment of benefits. The respondent is entitled to rely on the opinions of its assessors. And while I have found the respondent's submissions as to the character of the applicant to be ultimately unpersuasive, I do not consider them to be excessive or immoderate. It is open to an insurer to interrogate the applicant's credibility and the causation of his injuries.

46In conclusion, the applicant has not shown, on a balance of probabilities, that an award is merited in this case.

CONCLUSION AND ORDER

47The applicant is not barred from proceeding with his claims for accident benefits before the Tribunal. He is not barred from making a future claim for an income replacement benefit. He has discharged his onus to prove entitlement to the disputed physiotherapy and chiropractic treatment plans, plus interest calculated in accordance with the Schedule. He has also established entitlement to the proposed in-home occupational therapy assessment, plus interest calculated in accordance with the Schedule.

48The applicant has not established entitlement to the disputed psychological treatment. Nor has he established grounds for an award.

49The respondent is therefore liable for $15,848,80 plus interest calculated in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Sabadash v. State Farm et al., 2019 ONSC 1211.
3. 31993 OIC File No.: A-003985 (FSCO).