Licence Appeal Tribunal File Number: 19-010045/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:
Jihan Amminikandiyil
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Mohamed El Rashidy, Counsel
For the Respondent:
Ramandeep Pandher, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jihan Amminikandiyil, (“the Applicant”), was involved in an automobile accident on September 18, 2018, and sought benefits from Unifund Assurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Respondent denied certain benefits and the Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues in dispute are as follows:
i. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from September 25, 2018 to-date and ongoing?
ii. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for a functional ability evaluation plan dated July 29, 2019?
iii. Is the applicant entitled to a medical benefit in the amount of $7,400.00 for a life skills training dated November 6, 2018?
iv. Is the Applicant entitled to a medical benefit in the amount of $2,881.50 for a psychological assessment plan dated August 12, 2019?
v. Is the Applicant entitled to a medical benefit in the amount of $2,881.50, less $2,200.00 approved by the respondent, for a psychological assessment plan dated November 6, 2018?
vi. Is the Applicant entitled to a medical benefit in the amount of $7,639.00 for a hydrotherapy treatment plan, dated January 21, 2019?
vii. Is the applicant entitled to a medical benefit in the amount of $4,753.00 for a chiropractic treatment plan dated August 2, 2019?
viii. Is the Applicant entitled to a medical benefit in the amount of $2,881.50 for a chronic pain assessment plan, dated August 12, 2018?
ix. Is the Applicant entitled to a medical benefit in the amount of $2,881.50 for a neurology assessment plan dated November 6, 2018?
x. Is the Applicant entitled to an award under Ontario Regulation 664?
xi. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
3The Applicant does not meet the minimum employment threshold to qualify for IRBs and is disentitled for that reason. The Applicant is not entitled to the disputed treatment and assessment plans, interest, or an award.
BACKGROUND
4The Applicant was the driver of a sedan which was struck on the passenger side in a perpendicular fashion by another vehicle exiting a driveway. Police attended at the scene of the accident, but an ambulance was not called. The Applicant went to the hospital a few days later and complained of low back pain radiating down her right leg, headaches and vomiting daily. A physician assessed her at the hospital and x-rays were taken and an MRI was ordered. The Applicant was counseled on head injury protocol and diagnosed with low back pain and symptoms consistent with a concussion were noted. The Applicant was offered a CT scan but declined it because, according to the records, she stated she had too many CT scans in the past. The Applicant returned to the hospital two days later to get her MRI results, which showed a 1.2 cm central annular tear at L4-5. Minimal symptoms were observed then, and the Applicant was discharged again and told to follow up if symptoms persist or worsen.
5The Applicant’s recovery was monitored by her family physician following her hospital visits. She engaged in physician-recommended physiotherapy and chiropractic treatment following the accident.
6The parties are at odds as to whether the Applicant sustained a concussion in the accident. I am satisfied on a balance of probabilities that she sustained one. Although there is no unequivocal diagnosis of a concussion, the references to the Applicant’s concussion symptoms and the discussion of her head injury in the hospital records, as well as her consistent symptoms reported thereafter, are sufficient evidence for the purpose of this hearing.
ANALYSIS
7The Applicant engaged in treatment for her low back pain and headaches. She submits that she never returned to work following the accident and claims entitlement to IRBs and the disputed treatment and assessment plans.
INCOME REPLACEMENT BENEFITS
8The Applicant claims entitlement to IRBs because, according to her, she has not worked since the accident due to constant pain and the psychological toll of the accident. She submits that she was employed at the time of the accident, worked 26 of the last 52 weeks prior to the accident, and has constantly sought treatment from various healthcare providers.
9The Respondent submits that the Applicant was not employed at the time of the accident, that she worked less than 26 of the last 52 weeks prior to the accident, and that she does not meet the disability test for IRBs. It also disputes whether the Applicant reported her pre-accident income to the Canada Revenue Agency (“CRA”) and submits that, if she were to qualify for the benefit, the quantum of the benefit would be calculated on only the income reported to the CRA. Further, it submits that the Applicant must apply for CPP Disability payments, and the Respondent would get the benefit of deducting those payments from the IRBs payable.
Does the Applicant meet the employment threshold?
10In order to qualify for IRBs, the Applicant must be employed or self-employed at the time of the accident and suffer a substantial inability to perform the essential tasks of their employment or self employment. The Applicant may still be eligible even if she was not employed or self-employed at the time of the accident, if she can prove that she was employed for 26 of the last 52 weeks prior to the accident and suffers a substantial inability to perform the essential tasks of the employment in which she spent the most time during the 52 weeks preceding the accident.
11The Applicant claims that she was employed for 26 of the last 52 weeks prior to the accident. She provided 6 paystubs to support her claim.
12The Respondent submits that the Applicant was not employed at the time of the accident and that she failed to meet the employment threshold. It submits that the Applicant’s initial claims forms, including her disability certificate, all indicate that she was unemployed at the time of the accident. However, those documents were later revised to show that the Applicant was employed as a software consultant at Maplebots, a company that holds the insurance policy from which she claims benefits through and that is owned by her husband. It submits that the Applicant’s pay stub for the month of September 2018 should be disregarded because the Applicant’s initial claims forms all state that she was unemployed at the time of the accident.
13The Applicant made no reply submissions to address the Respondent’s position.
14I find insufficient evidence to show that the Applicant was working at the time of the accident, despite her claims that she was employed by her husband’s company. The Applicant provided no employment documents to confirm that she was working at the time of the accident. The revised claims forms, which state the Applicant was working at the time of the accident, are uncompelling evidence because there is nothing to corroborate the information that the Applicant inputted into the forms. Likewise, I find that the pay stubs are uncompelling evidence to show that the Applicant was employed at the time of the accident. Neither party provided a paystub for the month of September 2018 and the pay stubs that were included do not document when the Applicant worked. There are no other documents, such as a record of employment, to confirm her last day of work or that she was unable to continue work as a result of the accident.
15I find no evidence to show that the Applicant worked the requisite 26 weeks of the 52 weeks preceding the accident. The Applicant’s pay stubs are for the months of September, October, November, and December 2017 and July and August 2018, all of which show payment of $2,000.00. Neither party submitted a pay stub for the month of September 2018 and the Applicant does not get credit for the approximately two weeks of employment prior to September 18, 2017. Notably, the pay stubs before me provide no information on the hours or days worked. However, the revised Application for Accident Benefits, dated October 23, 2018, states that the Applicant works 15 hours per week at a rate of $500 per week. Together, the documents indicate that the Applicant worked four weeks per month. Six paystubs are before me, indicating that the Applicant worked, at most, 22 weeks out of the 52 weeks prior to the accident. This is still shy of the requisite 26 weeks of work required under the Schedule.
16Assuming the Applicant is paid $2,000.00 per month, regardless of the number of hours she worked, she still fails to meet the minimum employment threshold based on the evidence. The period from September 18 to December 31, 2017 is 14 weeks and six days. The period from July 1, 2018 to August 31, 2018 is eight weeks and five days. The total together is 23 weeks and four days. Given the Applicant the benefit of the doubt based on the evidence, she still falls short of the minimum 26-week threshold for eligibility by over one week.
17An analysis of the extent and duration of the Applicant’s disability is unnecessary considering that she has not provided sufficient evidence to demonstrate that she meets the minimum requirements to qualify for the benefit. Likewise, there is no need to evaluate whether the Applicant reported her income to the CRA or whether the Respondent is entitled to a deduction in payments because the Applicant is not entitled to the benefit.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
18The onus is on the Applicant to prove that the medical benefits she claims are reasonable and necessary for her accident-related injuries. She claims entitlement to the treatment and assessment plans on account of the frequency and duration of her treatment, as well as because she incurred the treatment out-of-pocket. To her, this indicates that the medical benefits are reasonable and necessary. The Respondent addressed each treatment and assessment plan directly and its responses are incorporated under the individual benefit section.
19Prior to my analysis of the individual treatment and assessment plans, I must first address the weight I have afforded to the clinical notes and records from Spinetec and Flow Health.
Spinetec and Flow Health
20I find the clinical notes and records (“CNRs”) from Spinetec and Flow Health hold no weight due to inaccurate and/or careless documentation.
21The first such example is the CNRs of physiotherapist Javeria Wadood, at Spinetec. The subjective and objective findings for each treatment session are copy and pasted on each successive entry. Thus, the records are inaccurate as they fail to itemize the actual complaints and/or observations. Additionally, the inaccurate records leave me unable to determine whether the Applicant receives any therapeutic benefits from physiotherapy treatment.
22The second example is regarding the CNRs of Dr. I. Chochorek, chiropractor. The records indicate that Dr. Chochorek treats the Applicant both at Spinetec and Flow Health. Both clinics include a record from a visit on May 22, 2019, where Dr. Chochorek treated the Applicant. There is no issue with the Applicant’s participation in treatment at two clinics, even if it were to occur on the same day. Instead, the issue is that the CNRs note that the Applicant reported no headaches at Spinetec, but on the same day, at Flow Health, she reported headaches for the “last couple days.” These two reports, allegedly made by the Applicant on the same day, cannot rationally coexist. To me, this means that at least one of the entries is inaccurate or extremely careless.
23As a result of these issues, I assign no weight to the CNRs of Spinetec and Flow Health and find that they are not assistive to the Applicant’s claims.
The Functional Ability Evaluation Plan, dated July 29, 2019
24The Applicant never addressed the treatment and assessment plans individually but submits that the ongoing and severe nature of her injuries, specifically her post-concussion and psychological injuries, renders the proposed assessments to be reasonable and necessary in order to obtain the appropriate treatment and reach maximum medical recovery. The Respondent contests that the functional ability evaluation plan is a duplication of services, and that the need for a new assessment is not substantiated by the Applicant.
25I find that the Applicant has failed to meet her burden to prove that the plan is reasonable and necessary because she presents no persuasive argument or evidence showing that she requires further assessment of her functionality.
26The functional abilities evaluation plan seeks to assess the Applicant, but there is no rationale for it. The Applicant’s submissions, and the plan itself, identify no goals or other detail explaining why the evaluation is necessary. This is unlike the Respondent’s Multidisciplinary Insurer’s Examinations (“IE”), which resulted in a report dated July 5, 2019. The reason for that assessment was to address the Applicant’s entitlement to IRBs. In that report, Dr. S. Baker, physiatrist, found that limiting heavy lifting was the Applicant’s only reasonable functional limitation. In the same report, D. Rodie, physiotherapist, found no restrictions based on the examination and concluded that the Applicant demonstrated good functional abilities with the majority of the tests, with the exception of pain limiting her immediate reaching activity with the left arm/shoulder and overhead reaching with both arms.
27I reviewed the CNRs from Dr. C. Stircu, family physician, and find that they identify virtually no functional impairment and fail to support the Applicant’s claim that this assessment is reasonable and necessary. The Applicant met with Dr. Stircu on February 7, 2019 and complained of persistent neck stiffness, low back pain, and nausea and was referred from physiotherapy, chiropractic treatment, and advised to avoid electronics and contact a concussion clinic. She met with Dr. Stircu again on April 4, 2019 due to vomiting and abdominal pains, which improved by her next visit on April 20, 2019. There is no indication of a functional impairment during the April 2019 visits and no visits until October 15, 2019, when the Applicant again complained of abdominal pain.
28Similarly, the psychological assessment report by I. Staroversky, psychotherapist, dated September 4, 2019 fails to support the Applicant’s claim. This report is focused on the Applicant’s psychological health and provides no persuasive evidence that the Applicant is experiencing a physical impairment which warrants investigation. It notes that the Applicant reports pain, but there is no evidence in the report that the reported pain impacts the Applicant’s functionality.
29I find the in-home occupational therapy assessment report by R. Zarzewski, OT, dated October 22, 2019, to be unpersuasive. The report notes that the Applicant experiences functional limitations in several areas including: sitting, walking, squatting, climbing stairs, pushing and pulling, lifting and carrying, bending, sleeping, gripping, and balancing. It concludes that she requires more than 21 hours of attendant care services a month. However, the impairment noted in the conclusion of this report is anomalous to the other medical records before me.
30Regardless, the Applicant may still be statutorily entitled to payment of this assessment. For this to happen, she must show that the Respondent failed to respond to it within the timelines prescribed by the Schedule and that she incurred the goods and services during the period of non-compliance. Pursuant to section 38(11), the Applicant is entitled to the goods and services where the Respondent fails to give a proper denial of the benefit within 10 business days, and the benefit was incurred.1 Section 38(11) ensures that insurers respond to treatment and assessment plans in a timely fashion by enabling an insured to incur goods and services starting on the 11th business day after the plan is submitted and ending when the proper notice is provided by the insurer. The Applicant submits that the Respondent’s notice of examination in reply to the July 29, 2019 chiropractic treatment plan is deficient because it failed to provide a medical reason for the assessment. The Respondent never addressed the Applicant’s concern directly.
31I agree with the Applicant that the notice is deficient in that it fails to give medical reasons for the denial, as required by section 38(8) of the Schedule. The August 16, 2019 letter, refused to pay for the treatment plan and requested that the Applicant attend an IE. The reason provided by the Respondent is “As a result of receiving this treatment request and after review of all medical documentation and treatment received to date, we require an examination by an independent medial assessor, in order to determine if the treatment being requested would be reasonably required as a direct result of the motor vehicle accident listed above.” This reason fails to adequately help the Applicant understand the medical reasons for why the Respondent seeks an independent assessment.
32However, there is no evidence that the assessment was incurred during the period starting on the 11th business day after submitting the treatment plan, as required by section 38(11)(2). Considering that the plan was never incurred, and that the assessment is not reasonable and necessary, I find that the Applicant is not statutorily entitled to payment for it.
Life Skills Training Plan dated October 30, 2018
33The respondent agreed to fund this treatment plan prior to the case conference for this hearing. It is not in dispute.
Psychological Assessment Plan dated November 6, 2018
34The Applicant claims entitlement to the transportation fees associated with this treatment and assessment plan. However, her claim must fail as she neglected to explain why she would be entitled to transportation to the assessment. According to section 3(1) of the Schedule, the Respondent is not liable to pay for the first 50 kilometers of travel. The Respondent submits that the Applicant lives 11 km from the assessment centre. The Applicant did not provide evidence to dispute this, so she is not entitled to payment for this expense.
Psychological Assessment Plan dated August 2, 2019
35I find that the Applicant has failed to meet her burden to prove entitlement to this assessment. Like the functional ability evaluation plan, she provides no rationale for this psychological assessment plan other than to highlight that she experienced psychological injuries. According to the uncontested submissions by the Respondent, it is a duplication of services because it already removed the Applicant from the MIG and was in the process of assessing whether a different psychological assessment was reasonable and necessary at about the same time this plan was submitted. The first plan was eventually approved.
36The evidence shows that the Applicant requested funding for two psychological assessments, and the Respondent approved one. She gives me no reason why this psychological assessment plan should be approved instead of, or in addition to, the other one. In my view, it would be unreasonable for the Applicant to incur two psychological assessments in a short timeframe without any evidence of a change in the Applicant’s circumstances or medical condition.
Hydrotherapy Treatment Plan dated January 21, 2019
37The Applicant claims entitlement to this hydrotherapy plan but provides no rationale for the treatment. She made no submissions, nor did she refer to any medical evidence, to lend support for this treatment and assessment plan. Further, there is no clear recommendation for hydrotherapy in any of the medical evidence before me. Considering this, the Applicant has failed to meet her burden to prove entitlement to this disputed treatment plan.
Chiropractic Treatment Plan dated July 29, 2019
38I find that this treatment plan is not reasonable and necessary beyond the $1,098.28 approved by the Respondent. The Applicant gives no specific reason as to why she requires ongoing chiropractic treatment, and her medical records include no credible recommendation that she engage in chiropractic treatment nearly one-year post-accident. The Applicant’s family physician made no recommendation for chiropractic treatment beyond February 7, 2019. As noted above, the CNRs from both Spinetec and Flow Health hold no weight and are uncompelling evidence of a need for chiropractic treatment. Whereas, the IE addendum report of Dr. S. Baker, physiatrist, dated November 11, 2019, concluded that chiropractic treatment was unnecessary but agreed that a progressive exercise program would be beneficial. Dr. Baker found that $1,098.28 was a reasonable cost for the exercise program. To me, Dr. Baker’s opinion prevails because the Applicant provides no contemporaneous opinion to the contrary in order to meet her burden of proof.
Chronic Pain Assessment Plan dated August 8, 2019
39I reiterate that the Applicant made no specific submissions addressing this assessment plan. Instead, she submits that all the disputed assessments are all reasonable and necessary given the ongoing and severe nature of her injuries. She submits that her post-concussion symptoms and psychological injuries warrant an assessment and reassessment of her physiological and psychological well-being in order to obtain appropriate treatment.
40I find that the chronic pain assessment is not reasonable and necessary because there is insufficient evidence to support that the Applicant has a pain condition which requires an assessment or examination for the purpose of reviewing and approving a treatment and assessment plan. The Applicant’s low back pain is attributed to the annular tear, and she keeps in contact with her family physician who monitors the situation and can and make any necessary recommendations. As the Respondent submits, no expert has connected the Applicant’s annular tear to the subject accident. In addition, there is no indication that the Applicant’s family physician suggested she participate in a chronic pain assessment, nor a physiatry assessment. Similarly, none of the IE reports before me find that a chronic pain assessment is reasonable and necessary.
41A review of the Applicant’s medical records reveals no compelling reasons for a chronic pain assessment. Dr. Stircu’s CNRs include no notes that suggest that the Applicant’s pain affects her functionality or requires further investigation, which are typical reasons to seek a chronic pain assessment. Likewise, there is no evidence to show that she exhibits some of the characteristics commonly associated with a chronic pain condition: there is no evidence of an overdependence on care providers, family members, or prescription medication. There is no evidence of secondary deconditioning due to disuse, nor is there evidence of withdrawal from social situations, other than the Applicant’s claim that she stopped working, which remains unclear to me. In the end, the duration and frequency of the Applicant’s treatment, without any other supporting evidence or recommendations from healthcare providers, is insufficient to find this assessment reasonable and necessary.
Neurology Assessment Plan dated November 1, 2018
42I find that the neurology assessment plan is not reasonable and necessary because there is no clear evidence to show that Applicant exhibits any neurological symptomology that warrants an assessment or examination for the purpose of reviewing and approving a treatment and assessment plan. The Applicant submits that this assessment was proposed due to the Applicant’s ongoing post-concussion symptoms but directs me to no evidence to support this claim. While I accept that the Applicant sustained a concussion as a result of the accident, I am not convinced that a neurology assessment is reasonable and necessary. A review of Dr. Stircu’s records shows no obvious ongoing neurological impairment which requires investigation. Dr. Stircu monitored the Applicant’s recovery following the accident and made no referrals for a neurological assessment. In fact, the family physician conducted a neurological exam on the Applicant on September 26, 2018, which produced unremarkable results. The Applicant never addressed these unremarkable examination results and provides no reason why the examination by Dr. Stircu was insufficient or why another assessment is required.
INTEREST
43Interest is payable on the overdue payment of benefits. I find that the Applicant is not entitled to any interest as no payments were delayed or went overdue.
AWARD
44The Applicant may be entitled to an award of up to 50% of the amounts withheld if the Tribunal finds that the Respondent unreasonably withheld or delayed the payment of benefits.
45The Applicant claims that the Respondent has not considered the evidence before it and failed to comply with its obligation to deliver reports in a timely manner. She submits that the Respondent took an adversarial approach to the adjusting of the claim by hiring independent assessors to examine the Applicant rather than approving the proposed assessments.
46The Respondent submits that an award is not warranted because the Applicant gave no specific information as to what medical documents it failed to consider. Likewise, it submits that the Applicant failed to particularize the untimely delivery of IE reports.
47I find insufficient evidence to order an award payable. I agree with the Respondent that the Applicant has failed to provide specific detail about the Respondent’s failure to adjust her claim. To me, there is no evidence that it failed to consider certain documents, nor is there evidence that the IE reports were delivered in an untimely fashion.
CONCLUSION
48The Applicant was involved in an accident and sustained a concussion and soft-tissue injuries as a result. While she claims entitlement to IRBs, she failed to provide any evidence to show that she was employed at the time of the accident or during 26 of the 52 weeks preceding the accident. As a result, she does not meet the employment threshold to qualify for IRBs and is not entitled to payment for same.
49The disputed treatment and assessment plans are not supported by the medical evidence. Thus, they are not reasonable and necessary, and the Applicant is not entitled to payment for them.
50No interest or award is payable, and no benefits were unreasonably delayed, and no payments were withheld or delayed.
Released: January 21, 2022
Brian Norris, Adjudicator
Footnotes
- See: N.P. vs. Wawanesa Mutual Insurance Company, 2021 CanLII 309 (ON LAT)