Citation: Yassami vs. AIG Commercial Insurance of Canada, 2022 ONLAT 19-013603/AABS

Licence Appeal Tribunal File Number: 19-013603/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:

Shohreh Yassami

Applicant

and

AIG Commercial Insurance of Canada

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Kenway Yu, Counsel

For the Respondent:

Jeffery Crannie, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on February 6, 2017 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 December 17, 2020, where they agreed for this matter to be heard by way of written hearing. Both the applicant and respondent submitted written submissions, and the applicant chose to submit a reply.

ISSUES

3At the Case Conference, the parties consented to the following issues to be decided by the Tribunal:

i. Is the applicant entitled to a non-earner benefit (‘NEB’) for $185.00 a week from March 6, 2017 to February 6, 2019 submitted April 6, 2017 and denied May 6, 2017?

ii. Is the applicant entitled to $2,380.48 for physiotherapy services recommended by Glenn Watkins submitted January 23, 2020 and denied March 6, 2020?

iii. Is the applicant entitled to a medical benefit for $1,422.48 for chiropractic treatment recommended by Wilson Massage and Physiotherapy submitted January 23, 2020 and denied March 17, 2020?

iv. Is the applicant entitled to a medical benefit for $4,637.15 for physiotherapy recommended by Wilson Massage and Physiotherapy submitted August 25, 2020 and denied November 18, 2020?

v. Is the applicant entitled to $1,855.05 for physiotherapy services recommended by Physical Flex Inc. submitted August 22, 2018 and denied September 11, 2018?

vi. Is the applicant entitled to $5,650 for physiotherapy services recommended by A+ Wellness Clinic submitted February 28, 2019 and denied April 1, 2019?

vii. Is the applicant entitled to a medical benefit for $1,422.00 for physiotherapy recommended by Wilson Massage and Physiotherapy submitted February 28, 2019 and denied March 17, 2019?

viii. Is the applicant entitled to $5,695 for physiotherapy services recommended by A+ Wellness Clinic submitted November 11, 2019 and denied November 20, 2019?

ix. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Regulation 664?

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

LAW

4Section 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.

5Section 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.

6Section 12(3)(c) of the Schedule states that an insurer is not required to pay a non-earner benefit for more than 104 weeks after the accident.

7Sections 14, 15 and 16 of the Schedule states that an insurer shall pay medical and rehabilitation 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 or rehabilitation benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

8Section 33(1) of the Schedule states that an applicant shall, within ten business after receiving a request form the insurer, provide the insurer with any information required to assist the insurer in determining the applicant's entitlement to a benefit.

9Section 33(6) of the Schedule states an insurer is not liable to pay benefit in respect to any period during which the insured fails to comply with section 33(1) or (2) of the Schedule.

10Section 36(3) of the Schedule states an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.

11Section 38(2) of the Schedule states that an insurer is not liable to pay an expense in respect to a medical or rehabilitation or assessment or examination that was incurred before the insured person submits a treatment and assessment plan, unless: the insurer gives the insured person a notice stating that it will pay the expense without a treatment and assessment plan; the expense is for an ambulance or other goods or services provided on an emergency basis but not more than 5 business days after the accident; the expense is reasonable and necessary as a result of the impairment sustained by the injured person for drugs prescribed by a regulated health profession, or goods with a cost of $250.00 or less, with the goods listed in section 15(1)(d) to (f) and 16(3)(h) to (j).

12Section 44(1) of the Schedule states that in order to help an insurer determine if an insured person is, or continues to be entitled to a benefit that the insured person applied for under the Schedule, but not more often than is reasonably necessary, the insurer may require the insured person to be examined by one or more people, chosen by the insurer, who are regulated health professional or who have expertise in vocational rehabilitation.

13Section 51(2) 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.

14Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280(2) of the [Insurance Act]² if the insurer has provided the insured person with a notice in accordance with the Schedule that is requires an examination under section 44 but the insured person has not complied with that section.

Is the applicant entitled to a non-earner benefit (NEB) for $185.00 from March 6, 2017 to February 6, 2019?

Submissions and evidence

15The respondent denied that the applicant was entitled to the NEB for all of the period in dispute. The respondent argued that pursuant to section 36(3) of the Schedule, an applicant who fails to submit a completed OCF-3 is not entitled to a specified benefit for any period before said OCF-3 is submitted.

16Based on this, the respondent put forward that since it did not receive the applicant’s OCF-3 until September 6, 2018,³, the applicant is not entitled to a NEB from March 6, 2017 until September 21, 2018.

17The September 20, 2018 date was used and not September 6, 2018 because, on September 20, 2018, the respondent contacted the applicant to arrange section 44 assessments related to NEB eligibility.⁴

18The respondent also submitted that the applicant is statute barred from applying for NEBs, as she failed to attend the required section 44 assessments, pursuant to section 55 of the Schedule.

19According to the respondent, the applicant’s representative requested the assessments be cancelled until the applicant returned to Canada. The respondent submitted that it tried to reschedule with the applicant on March 14, 2019 and November 4, 2019 but was unsuccessful.

20When the application was filed in December of 2019, the applicant had yet to attend the requested assessment. Based on section 55 of the Schedule, the respondent submitted that the applicant should not be applying to the Tribunal, as she failed to attend an examination under section 44.

21Since the applicant did not attend the assessment until October 2, 2020, or 19 months beyond the 104-week period of NEBs, she was not assessed within the 104-week period after her accident.

22The respondent also argued in the alternative, that since the applicant failed to attend the required section 44 assessments related to her NEB eligibility, she failed to comply with section 33(6) of the Schedule, as she had an obligation to provide information reasonably required to help the respondent in determining her entitlement to the NEB.

23Furthermore, the respondent also argued that the applicant had failed to demonstrate that she is entitled to the NEB in accordance with section 3(7)(a) of the Schedule. Since it is the applicant’s obligation to satisfy the Tribunal that she is entitled to the NEB and has failed to do, the Tribunal must find she is not entitled to such. It noted that the applicant had not provided a clear “snapshot” of her limitations before and after the accident, nor had she provided any affidavit evidence that directly touched on this.

24In terms of the applicant’s failure to attend the section 44 assessments within 104 weeks of her accident, she submitted that due to not being in Canada and her older age, travel was difficult.

25The applicant also submitted that based on the medical information she already provided, her physical and psychological injuries have been well documented⁵. The applicant argued that in terms of her pre and post accident activities and limitations, the information from the In-Home Assessment⁶ showed that the applicant could not walk or stand for long periods of time and could not use the stairs.

26The applicant submitted she is entitled to a NEB for the time period in dispute. She relied on Heath v. Economical Mutual Insurance Company⁷ when determining if an injured person qualifies for a NEB. The applicant submitted that due to her continued knee, lower back and neck pain⁸, she is entitled to the benefit.

27The applicant also submitted that she has difficulties managing her activities of daily living (‘ADL’s) and finds walking difficult.⁹

28The applicant submitted that as a result of the accident, she is not longer able to engage in many of her pre-accident activities such as moving and exercising, as noted by Dr. Lili Naghdi, Family Doctor.¹⁰

29The applicant submitted that as a diabetic, Dr. Naghdi encouraged her to exercise at least thirty minutes per day, 5 days per week.¹¹ This opinion was echoed by Dr. Paul Lau, Physician, who saw the applicant at Dr. Poon’s Metabolic Diet Clinic.¹²

30Due to her injuries, the applicant submitted that she cannot perform her physical tasks to maintain her pre-diabetic condition as a result of the accident.

31The applicant also argued that her accident-related injuries have stopped her from returning to work, due the physical demands of her job.

32The applicant also relied on In-Home Assessment done by Varun Madan, Occupational Therapist¹³. This assessment found that the applicant voiced she experienced many limitations to her physical tolerance, including walking, standing for long periods of time and requiring to use an elevator instead of taking the stairs.¹⁴.

33This report found that the applicant was independent in her housekeeping tasks before the accident, but would require help based on her range of motion, post-accident.¹⁵

34The applicant was referred to Dr. Grigory Karmy, Chronic Pain Specialist¹⁶. Dr. Karmy saw the applicant,¹⁷ and noted the applicant was experiencing “chronic knee pain”, shoulder pain and back pain after February 7, 2017.¹⁸

35The applicant also relied on Mohammad-Reza Sadeghi’s, Clinical Psychotherapist, Psychological Assessment of the applicant.¹⁹. Mr. Sadeghi diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, features of Posttraumatic Stress Disorder, Somatic Symptom Disorder and Specific Phobia, Situational Type (motor vehicles).²⁰. Mr. Sadeghi also opined that the applicant’s physical pain was impeding her daily activities and her ability to continue to work.²¹

36Mr. Sadeghi also put forward that the applicant’s physical and psychological inability to perform the essential tasks of her pre-accident employment prevent her from engaging in pre-accident employment.²². Mr. Sadeghi submitted the applicant would require a vocational assessment to determine what kind of work, if any, the applicant would be able to tolerate.

37Mr. Sadeghi also submitted that the applicant’s physical and psychological injuries prevented her from resuming her household and home maintenance activities, as the applicant stated that due to her pain levels, she needs assistance to perform such. He also submitted she had difficulties with her personal care activities, and reported the applicant had pain with grooming and self-care as a result of the accident, as well as with family, social and recreational activities.

Analysis

38After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not persuaded me that she is entitled to a NEB for any of the period in dispute.

39I agree with the respondent’s submissions in relation to section 36(6) of the Schedule, namely that since the applicant did not complete an OCF-3 she is not entitled to a specified benefit, in this case, the NEB, before the OCF-3 is submitted. Since the applicant did not refute that her OCF-3 was only submitted on September 6, 2018, she is not entitled to a NEB from March 6, 2017 until September 6, 2018, as she failed to comply with the Schedule.

40In terms of the applicant’s failure to attend the section 44 assessments until October 2, 2020, the onus is on the insured person to provide a reasonable explanation for not attending the section 44 examination.²³ In this case, I was not convinced that being out of the country was enough of an explanation as to why the applicant did not participate in the assessments for nearly 1.65 years beyond the 104-week period.

41Based on the above, the applicant failed to attend the section 44 assessment until October 2, 2020. Since she applied to the Tribunal before this date, she is statute barred from applying for an NEB, as she did not comply with section 55(1)2 of the Schedule.

42Therefore, since the applicant is statute barred from applying for a NEB, her request for this benefit is denied.

$2,380.48, $4,637.15, $1,855.05, $5,650.00, $5,695.00, $1,422.00 for physiotherapy services, $1,422.48 for chiropractic treatment

43After considering the submissions and evidence of the parties, and based on a balance of probabilities, I find that the above-mentioned treatment plans are/are not reasonable and necessary for the following reasons:

i. The applicant submitted that all of the treatment plans in question are reasonable and necessary and are for physiotherapy and chiropractic services. The treatment plans aim to address the applicant’s above noted physical injuries, specifically her knee pain, back pain and neck pain.²⁴

Given that the applicant continues to deal with on-going and continuous issues associated with her mobility and pain, and that she needs to engage in a healthy exercise routine²⁵ to address her pre-diabetes, these treatment plans must be found to be reasonable and necessary.

The applicant did not discuss the modalities of the treatments, the frequency of the treatments, the costs of the treatments or other factors.

ii. The respondent submitted that the treatment plans for $5,650.00 and $5,695.00 from A+ Wellness did not comply with section 38(2) of the Schedule. The respondent submitted that it is not liable to pay these expenses, as the applicant failed to provide a record for the treatment plan of $5,650.00, and that the plan of $5,695.00 was incurred before the applicant submitted the treatment plan; no treatment plans were submitted before the costs were incurred by the applicant, and the insurer did not agree to fund them prior to seeing the treatment plan.

iii. The respondent also submitted that the treatment plans for $1,855.05, $1,422.00 and $2,380.48 are statute barred from proceeding, as the applicant failed to comply with section 55(1)2 of the Schedule, the applicant failed to attend the section 44 assessment prior to the commencement of the application to the Tribunal.

iv. The respondent argued that the applicant had failed to show that any of the treatment plans in dispute were reasonable and necessary. It relied on sections 14, 15 and 16 of the Schedule, which state an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. It submitted that since the applicant bears the onus of showing, based on a balance of probabilities, that the treatments and assessments are reasonable and necessary,²⁶ and failed to do so, the respondent is not liable to pay these expenses.

The respondent relied on its section 44 assessment by Dr. Reuven Lexier,²⁷ Orthopaedic Surgeon, who address the treatment plans in the amounts of $1,855.05, $1,422.48 and $4,637.15. Dr. Lexier found that these treatment plans were not reasonable and necessary. Dr. Lexier put forward that as a result of the accident, the applicant suffered a contusion to both her knees, a seatbelt contusion of her left shoulder with ecchymosis, a bloody nose with ecchymosis, a WAD II injury of the cervical spine and a strain to the lumbosacral spine and that the applicant’s prognosis for a full recovery from these soft tissues injuries is excellent.

Though Dr. Lexier did not address the treatment plans in the amounts of $5,650.00, $2,380.48and $5,695.00, the respondent submitted that these treatment plans are substantially similar to the 3 treatment plans addressed by Dr. Lexier, and that his findings equally apply to these 2 treatment plans.

v. In terms of the applicant not attending her section 44 assessments, the applicant relied on the submissions related to her delay in attending the NEB assessments, in that she is elderly and was out of the country.

The applicant’s submissions were silent with regard to her compliance with section 38(2) of the Schedule.

After considering the submissions and evidence of the parties, based on a balance of probabilities, I am not persuaded that any of the treatment plans in dispute are reasonable and necessary.

In terms of the treatment plan for $5,650.00 and $5,695.00, since the applicant did not refute that she failed to comply with section 38(2) of the Schedule, I was more persuaded that the applicant did not provide the respondent with a record of these treatment plans, and that they were incurred prior to the applicant submitting the treatment plans to the respondent.

As for the treatment plans for $1,855.05, $1,422.00 and $2,380.48, though I am aware of the applicant’s difficulties in attending the assessments related to these treatment plans, I was not convinced that the reasons provided by the applicant were sufficient to allow her to apply for these benefits before attending the section 44 assessments. Therefore, since the applicant has failed to comply with section 55(1)2 of the Schedule, her application for these benefits is statute barred.

As for the remaining treatment plans in dispute, the plans for $1,422.48 for chiropractic treatment and $4,637.15 for physiotherapy, I was more persuaded by the respondent’s submissions regarding these treatment plans. As stated above, the applicant carries the burden of demonstrating that the requested treatment plans are reasonable and necessary. In this case, I find that she failed to do so, as the only medical evidence she provided to support these treatment plans were the findings of the service provider. Though the applicant’s evidence demonstrates that she is experiencing pain issues, neither the service provider nor any other medical professional made comments related to the modalities, frequency or other considerations in these treatment plans.

Without some kind of medical professional’s recommendation for these two treatment plans, the applicant cannot proceed with this application, as she has not met her evidentiary onus.

Interest & Award

44As there are no benefits owing, no interest is payable.

45Section 10 of Regulation 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 fifty per cent of the amount in which the person was entitled together with interest on all amounts then owing to the insured person.

46Since I have found that there are no payments of benefits owing, there is no basis to consider an award in this matter.

CONCLUSION AND ORDER

47The applicant is not entitled to a non-earner benefit for the period of March 6, 2017 to February 6, 2019.

48The applicant is not entitled to the disputed treatment plans.

49The applicant is not entitled to interest or an award.

Released: March 9, 2022

__________________________

Stephanie Kepman

Adjudicator

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Insurance Act, R.S.O. 1990, c. I.8
3. 3Based on an email from Joy Abano dated September 6, 2018.
4. 4Based on the section 44 Notice dated September 20, 2018.
5. 5As noted by Dr Naghdi on January 23, 2020.
6. 6Provided by Varun Madan dated November 5, 2020.
7. 7Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
8. 8As documented by Dr. Lili Naghdi, Family Doctor, on January 23, 2020.
9. 9Ibid.
10. 10As seen in Dr. Naghdi’s clinical notes and records of September 8, 2020.
11. 11Ibid.
12. 12Ibid.
13. 13Dated November 5, 2020.
14. 14In Home Assessment by Varun Madan dated November 5, 2020.
15. 15Ibid.
16. 16By Dr. Dr. Naghdi on October 21, 2020.
17. 17On October 23, 2020.
18. 18Of Dr. Karmy’s note of October 28, 2020.
19. 19Conducted on April 28, 2021.
20. 20Psychological Assessment Report dated April 28, 2021.
21. 21Ibid.
22. 22Ibid.
23. 2317-002582 v The Personal Insurance Company, 2019 CanLII 22197 (ON LAT)
24. 24The treatment plans themselves.?????
25. 25Clinical notes and record of Dr. Naghdi, dated September 8, 2020.
26. 26Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627.
27. 27Insurer’s Examination – Orthopedic Assessment dated October 29, 2020.