Omidvari v. Jevco Insurance, 2022 CanLII 158

Citation: Omidvari v. Jevco Insurance, 2022 ONLAT 20-001628/AABS

Licence Appeal Tribunal File Number: 20-001628/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:

Fariba Omidvari

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Raymond Luk, Counsel

For the Respondent: Murleen McLean, Counsel

HEARD: Heard in writing

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on August 5, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a Case Conference on November 12, 2020 but were unable to resolve the issues in dispute.

ISSUES

3On consent, the following issues in dispute were agreed upon at the Case Conference:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 5, 2018 to date and ongoing?

ii. Is the applicant entitled to $1,796.00 for an occupational therapy assessment, recommended by Ashok Jain in a treatment plan (OCF-18) submitted on June 9, 2020, and denied on June 23, 2020?

iii. Is the applicant entitled to $2,292.15 for chiropractic treatment, recommended by Glenn Watkins in a treatment plan (OCF-18) submitted on February 27, 2020, and denied on March 12, 2020?

iv. Is the applicant entitled to $1,995.55 for an attendant care assessment, recommended by Alliance Diagnostics in a treatment plan (OCF-18), submitted on August 14, 2020, and denied on August 24, 2020?

v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, recommended by Sports Medicine Rehab in a treatment plan (OCF-18) submitted on September 30, 2020, and denied on October 20, 2020?

vi. Is the applicant entitled to $2,168.00 for preliminary CAT assessment, recommended by Sports Medicine Rehab in a treatment plan (OCF-18) submitted on October 21, 2020, and denied on November 2, 2020?

vii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

4The respondent has subsequently approved issues iv and vi, therefore I will not consider them.

Law

5Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. The onus is on the applicant to prove that he/she/they suffers from a complete inability to carry on a normal life. This standard is often referred to as being one of the most difficult thresholds to meet under the Schedule.

6Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within one hundred and four weeks after the accident and does not qualify for an income replacement benefit (an ‘IRB’).

7Section 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary².

8Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

EVIDENCE & Analysis

Non-earner benefit of $185.00 per week from September 5, 2018 to date and ongoing

9The test for non-earner benefit has been established as one of the most rigid tests under the Schedule, as noted in Heath v. Economical³. This test is subjective and requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period of time. There are six factors from Heath that the Court of Appeal considered when determining if an insured person has satisfied the test of section 3(7) of the Schedule⁴.

10After considering the evidence of the parties, based on a balance of probabilities, I find that the applicant does not suffer a complete inability as defined by the Schedule, and therefore, does not qualify for the non-earner benefit for the following reasons:

i. The applicant submitted that before the accident, she was a full-time homemaker and primary caregiver to her daughter with a developmental disorder. In terms of pre-accident health, the applicant detailed that she had a health history for clinical depression⁵, a slip and fall in 2013⁶ which resulted in a tear to her rotator cuff, which was resolved.

She submitted that before the accident, she was fully independent with her activities of daily living (‘ADL’s) but now requires assistance for these tasks⁷, due to pain, which has made walking difficult. She also submitted that despite having around twenty years of experience as a tailor, she can no longer engage in this activity⁸.

ii. The applicant also submitted that as a result of the accident, her pain and psychological injuries have caused a complete inability to carry on a normal life. She relied on Disability Certificates⁹ (‘OCF-3’s), confirming that the applicant met the complete inability test.

To support this position, she relied on the Magnetic Resonance Imaging (‘MRI’) of her lumbar spine, which noted circumferential disc bulges, ligamentum flavum hypertrophy, resulting in spinal canal and neuroforaminal stenosis¹⁰.

A second MRI¹¹ revealed disc herniation, causing compression to the left nerve root. Due to this diagnosis, the applicant saw Dr. Ashish Kumar, Neurosurgeon, who opined¹² that the applicant will need a surgical option.

iii. The respondent submitted that the applicant does not suffer a substantial inability to carry on her ADLs. It relied on its section 44 assessment of Dr. Robert Woods¹³, which diagnosed the applicant with Adjustment Disorder with Mainly Depressed Mood, Chronic Unspecified Depressive Disorder, Chronic Somatic Symptom Disorder with Predominant Pain, persistent. Dr. Woods also suggested the applicant amplified complaints during the interview.

The applicant was reassessed by Dr. Woods¹⁴ in relation to treatment for psychotherapy. Dr. Woods again raised issues with validity testing. He diagnosed the applicant with Adjustment Disorder with Mainly Depressed Mood, primarily as a result of the accident. Dr. Woods noted that the applicant’s Chronic Unspecified Depressive Disorder, pre-dated and was not directly related to the accident but may have aggravated her depressive symptoms.

The applicant was also assessed by Dr. Sabrina Ming-Wai Tu¹⁵, Physician. Dr. Tu found that the applicant suffered a cervical, lumbar and right knee strain as a result of the accident and found that the applicant did not suffer a complete inability to carry on a normal life.

In terms of Dr. Kumar’s letter, the respondent reminded the Tribunal that Dr. Amir Khoshbin, Orthopaedic Surgeon, saw the applicant over a year after Dr. Kumar, and he opined that her hip was normal and did not require surgery¹⁶.

iv. The respondent also argued that the applicant has not shown that her current pain issues, namely the MRI findings of March 2020 and January 2021 are related to the accident.

It directed the Tribunal’s attention to the numerous OCF-3s submitted by the applicant and argued that most of the injuries noted on them were not related to the applicant’s pain complaints or to injuries from the accident.

The respondent noted that the first OCF-3¹⁷ stated that the applicant had soft tissue injuries, anxiety, depression and giddiness. Given that this first OCF-3 came from a Chiropractor, the respondent submitted that Dr. Shadi Jahandideh-Sheljani was not in a position to make psychological findings, as this is outside their expertise or area of practice.

The respondent also directed me to the second OCF-3¹⁸, completed by the applicant’s family doctor, Dr. Manijeh Bakhshi, which listed the applicant’s injuries as tension headache, whiplash and sciatica. The respondent further directed me to the applicant’s third OCF-3¹⁹, which listed only soft-tissue injuries and headaches as injuries.

It argued that it was only the applicant’s fourth OCF-3s²⁰ that noted the applicant’s issues with pain and mental health. Furthermore, the respondent submitted that the fourth OCF-3²¹ of Dr. Bakhshi stated that the applicant did not suffer a complete inability to carry on activities of normal life.

The respondent also noted that the applicant’s fifth OCF-3²² noted that the estimated duration of the applicant’s complete inability was nine to twelve weeks.

v. The applicant also submitted that the respondent’s 3 section 44 assessments should be afforded less weight because they were conducted prior to the MRI results of the applicant in 2020 and 2021. As such, she submitted that the assessments did not properly identify the reasons for the applicant’s pain and injuries.

The applicant submitted that Dr. Tu’s²³ failure to recognize the applicant’s reported pain and physical impairment make it less reliable than her own medical evidence.

The applicant also submitted that Dr. Woods’ assessment should be given little weight, as he downplayed the applicant’s injuries. She also submitted that Dr. Woods’ failure to address the applicant’s pre and post accident limitations are problematic, as Dr. Woods’ still found that the applicant did not suffer a complete inability.

Finally, the applicant submitted that the section 44 assessment²⁴ of Rasul Kassam, Occupational Therapist should be given less weight based on the fact that Mr. Kassam noted that the applicant was most likely self-restricting during the assessment and had greater functional abilities than those presented during the assessment. The applicant submitted that Mr. Kassam incorrectly presumed that the applicant only had soft-tissue injuries as a result of the accident.

vi. I was more persuaded by the respondent’s position, namely related to the OCF-3s not demonstrating a complete inability. I do not agree that the OCF-3s prima facie demonstrate that the applicant suffered a complete inability as a result of the accident. The applicant provided no medical information between 2018, the year of the accident, and 2019, that supported this position.

The applicant provided evidence via the OCF-3s from 2018, which showed that she either did not have a substantial inability²⁵ or that this substantial inability was expected to last nine to twelve weeks²⁶. The applicant made no direct submissions regarding the inconsistencies with her position and the OCF-3s.

vii. Furthermore, the applicant did not provide what I would call a “complete picture” of her life, pre and post accident²⁷. Instead, I was provided with a chart by the respondent, which compared the applicant’s activities, before and after the accident. The chart showed that the applicant was able to complete a significant amount of her pre-accident activities.

As noted by the respondent²⁸, the Tribunal has found that an applicant will not be deemed incapable of performing substantially all of their pre-accident activities, if found to be capable of performing at least 50% of their pre-accident activities. Since the applicant has not provided a breakdown or testimony regarding her ADLs, and the only evidence provided regarding this was via the above-mentioned chart, which showed the applicant could perform the majority of her pre-accident activities, I find that the applicant has not met her evidentiary burden.

$1,796.00 for an occupational therapy assessment, $2,292.15 for chiropractic treatment, $1,995.55 for an attendant care assessment

11The applicant sought funding for an occupational therapy assessment of her motor and living skills and associated fees²⁹, funding for chiropractic treatment and for an attendant care assessment. Since the assessments and chiropractic treatment have similar goals and rely on similar evidence, I will address them at once.

12The applicant relied on the result of the two MRIs mentioned above. She submitted that these MRIs demonstrate the applicant’s injuries and said injuries and limitations were and that these were observed by Insurance Examiners³⁰, Based on this, and the fact that the respondent’s assessors did not have access to the two MRIs, the applicant submitted that the respondent came to incorrect conclusions, namely that the accident did not cause the applicant injuries and that said injuries were soft-tissue in nature. The applicant submitted that had Dr. Silver had access to these MRIs, he would have approved the assessments and treatment.

13The respondent submitted that the assessments and treatment were not reasonably and necessary and relied on its section 44 assessment³¹, conducted by Dr. Eric Silver, Physician, which found that the applicant’s injuries were not directly attributable to the accident.

14Dr. Silver then prepared a paper assessment³², where he diagnosed the applicant with soft tissue injuries to her neck and lower back and submitted that some of her injuries may be non-organic did not have a direct, anatomical cause. Dr. Silver opined that the applicant did not suffer from injuries that required an occupational therapy assessment nor chiropractic treatment.

15Dr. Silver provided an addendum report³³ which found that the MRI of March 10, 2020 findings of degenerative changes and spinal stenosis are not as a result of the accident and instead suggested that the accident caused a temporary exacerbation of the applicant’s pre-existing degenerative changes.

16The applicant also argued that no weight should be placed on Dr. Silver’s assessment of the applicant, as Dr. Silver did not consider the above-mentioned MRIs. She argues that since Dr. Silver relied on the above-mentioned section 44 assessments of Dr. Tu, Mr. Kassam and Dr. Silver’s own report related to a different issue, all which did not consider the MRIs, she submitted that Dr. Silver’s opinion regarding the treatment plan is of little value.

17The respondent also submitted that the second MRI, of January 22, 2021 was only sent to the respondent on May 31, 2021, giving the respondent no time to obtain addendum reports.

18After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the assessments in question are not reasonable and necessary, and the treatment plan is not reasonable and necessary. This is because the applicant has not met her burden to demonstrate such.

19The applicant relied on the MRIs in support of the assessments and the treatment. However, she did not provide any medical evidence that provides an explanation or comments on the reasonableness of this assessment from a medical professional. Since the burden falls on the applicant to demonstrate, based on a balance of probabilities, that the assessment is reasonable and necessary, and the applicant has not done so, I find that she has not met her burden of proof.

$2,200.00 for a chronic pain assessment

20The applicant requested funding for a chronic pain assessment, which was denied by the respondent. The applicant submitted that the chronic pain assessment is reasonable and necessary given the length of time she has suffered from her pain symptoms.

21The applicant also submitted that she was given a chronic pain diagnosis by Dr. Z. (Marc) Marcianiak, Physician, during her catastrophic assessment report³⁴. However, since this report was written to determine catastrophic impairment, it made no comments on recommending a chronic pain assessment.

22The respondent relied on Dr. Silver’s paper review³⁵, which found that the chronic pain assessment was not reasonable or necessary, given the applicant’s diagnosis of soft tissue injuries, which had resolved.

23After considering the parties evidence, based on a balance of probabilities, I find that the assessment is not reasonable and necessary, as the applicant has not met her evidentiary burden. The applicant relied on the catastrophic assessment in support of the chronic pain assessment. However, she did not provide any medical evidence that provides a recommendation for such, an explanation or comments on the reasonableness and necessity of this assessment from a medical professional. Since the burden falls on the applicant to demonstrate, based on a balance of probabilities, that the assessment is reasonable and necessary, and the applicant has not done so, I find that she has not met her burden of proof.

Special award & Interest

24Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

25It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate³⁶. In this case, since I found that no benefits were unreasonably withheld or delayed, the applicant is also not entitled to interest and/or an award under Reg. 664 as no benefits are owing and/or withheld.

CONCLUSION AND ORDER

26I find the applicant is not entitled to the non-earner benefit.

27I find that the applicant is not entitled to the occupational therapy assessment, the physical therapy treatment plan, the attendant care assessment, the chronic pain assessment, a special award or interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlet and Belair, 2015 ONSC 3635 (Div Ct.) at para 24
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
4. 4Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
5. 5Dr. Wood’s section 44 assessment dated July 30, 2019.
6. 6Clinical notes and records of Dr. Bakhshi, dated May 31, 2021.
7. 7Based on the Occupational Therapy In-Home Assessment, assessed October 10, 2020
8. 8Clinical Notes and Records of Dr. Speare dated May 27, 2021
9. 9OCF-3 by Dr. Manijeh Bakhshi dated October 24, 2018 and OCF-3 by Dr. Janette Speare dated January 14, 2021.
10. 10From the MRI of the applicant’s lumbar spine dated March 10, 2020 and Dr. Speare’s clinical notes and records dated May 27, 2021.
11. 11From the MRI of the applicant’s lumbar spine dated January 22, 2021.
12. 12In a letter dated December 7, 2020.
13. 13Dated July 30, 2019.
14. 14Section 44 assessment dated January 20, 2021
15. 15Based on the section 44 assessment of Dr. Wu dated July 30, 2019.
16. 16Report of Dr. Khoshbin, dated January 4, 2021.
17. 17OCF-3 of Dr. Shadi Jahandideh-Sheljani, Chiropractor dated August 18, 2018.
18. 18OCF-3 of Dr. Bakhshi dated August 24, 2018.
19. 19OCF- of Mandeep Sethi, Physiotherapist, dated September 18, 2018
20. 20OCF-3 by Dr. Bakhshi dated February 11, 2020.
21. 21OCF-3 by Dr. Bakhshi dated February 11, 2020
22. 22OCF-3 of Dr. Glenn Watkins, Chiropractor, dated February 27, 2020.
23. 23Section 44 assessment dated July 30, 2019.
24. 24Section 44 assessment dated February 5, 2021.
25. 25OCF-3 of Dr. Shadi Jahandideh-Sheljani dated August 18, 2018 and OCF-3 of Dr. Bakhshi, dated February 11, 2020.
26. 26OCF-3 of Dr. Bakhshi , dated August 24, 2018 & OCF-3 of Mandeep Singh Sethi dated September 18, 2018.
27. 27As noted in Chen v Chubb Insurance Company of Canada, 2020 CanLII 103700 (ON LAT).
28. 28As seen in Sookram v Zenith Insurance Company, 2021 CanLII 13201 (ON LAT).
29. 29OCF-18 of Ashok Jain, Occupational Therapist dated June 9, 2020.
30. 30Dr. Silver’s section 44 assessment dated September 28, 2020 and Mr. Kassam’s section 44 assessment of February 5, 2021.
31. 31Section 44 Assessment of Dr. Eric Silver dated September 4, 2020.
32. 32Dr. Silver’s paper assessment dated October 2, 2020.
33. 33Dr. Silver’s Paper Review of November 27, 2020.
34. 34Dr. Marciniak’s Catastrophic Impairment Report dated June 1, 2021.
35. 35Dr. Silver’s paper review dated September 18, 2020.
36. 36See: 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) at para. 28 and S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration) at para. 39 (“S.M. v Unica”).