Citation: Shakar v. The Co-Operators Insurance Company, 2022 ONLAT 19-013658/AABS

Licence Appeal Tribunal File Number: 19-013658/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:

Hussen Shakar

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Thamara Jeyakumar, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Hussen Shakar, was involved in an automobile accident on December 19, 2018, and sought benefits from the respondent, The Co-Operators Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent removed the applicant from the Minor Injury Guideline but denied several of her claims for medical benefits. It also denied her claim for an income replacement benefit. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the applicant entitled to an income replacement benefit from December 26, 2018 to date and ongoing, and if so, in what amount?

b. Is the applicant entitled to physiotherapy treatment recommended by Alexmuir Wellness Centre as follows:

i. $3,435.92 in a treatment plan ("OCF-18") submitted on May 23, 2019, and denied by the respondent on May 30, 2019?

ii. $2,846.16 in an OCF-18 submitted on August 31, 2019, and denied by the respondent on September 5, 2019?

c. Is the applicant entitled to $2,125.00 for a psychological assessment recommended by Alexmuir Wellness Centre in an OCF-18 submitted on August 1, 2019, and denied by the respondent on August 14, 2019?

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

RESULT

4The applicant has failed to prove entitlement to the income replacement benefit and medical benefits she seeks. No benefits are payable, and no interest is owing. The application is dismissed.

ANALYSIS

The applicant is not entitled to an income replacement benefit

5Section 5 of the Schedule sets out the criteria for entitlement to an income replacement benefit. To be eligible, an insured person must suffer a substantial inability to perform the essential tasks of their employment. The applicant bears the onus of proving entitlement to an income replacement benefit on a balance of probabilities.²

6The applicant has made no submissions as to how she meets the test for disability entitling her to an income replacement benefit. She does not demonstrate that she suffers a substantial inability to perform the essential tasks of her employment. Prior to the accident, she worked part-time as a manager in a retail store. She has not presented evidence capable of establishing that her accident-related injuries interfered with her ability to work.

7The respondent submits that aside from the applicant's failure to satisfy the test for an income replacement benefit, it is not liable to pay income replacement between May 11, 2019 and June 4, 2020 due to the applicant's non-compliance with a request made under s. 33 of the Schedule. On May 1, 2019, the respondent had requested the clinical notes and records of the applicant's family physician and the hospital records from the date of the accident. It was not until June 4, 2020 that the applicant provided clinical notes and records from her family physician. The records she produced only contained entries until December 2019.

8The applicant does not rely on the clinical notes and records from her family physician. The records are before me because the respondent has provided them to the Tribunal. The records contain no reference to any accident-related complaints. The first recorded post-accident visit is in June of 2019, approximately 6 months later. The records do not establish impairments of any kind that would leave the applicant substantially unable to perform the essential tasks of her employment.

9The applicant's accident-related injuries are listed in a January 4, 2019 Disability Certificate (OCF-3) completed by Ginna Bajaj, a physiotherapist. Although the OCF-3 indicates the applicant meets the test for an income replacement benefit, the injuries it identifies are all soft tissue sprains and strains.

10An OCF-3 on its own is not a complete application for an income replacement benefit. Where an application for benefits indicates eligibility for either an income replacement benefit or a non-earner benefit, s. 35 of the Schedule requires an insurer to provide the insured person with an Election of Benefits Form (OCF-10) which the insured person is required to complete within 30 days. The respondent instructed the applicant to complete an OCF-10 on January 24, 2019. The applicant did not submit the completed OCF-10 until May 1, 2019.

11I find that even if the applicant had established that she met the disability test for an income replacement benefit within 104 weeks of the accident, the respondent would not be liable to pay the benefit until June 4, 2020 as a result of her non-compliance with its request for information under s. 33. At most, she would have been entitled to receive the benefit for approximately six months, when the more stringent test for entitlement after 104 weeks post-accident would apply.

12However, not only has the applicant failed to present medical evidence of a substantial inability to perform the essential tasks of her employment, she has also failed to present evidence to show that she remained off work throughout the relevant period. The respondent submits that the applicant returned to work in September 2019, remaining employed for just over another year before going on leave to care for a sick family member, and eventually quitting in January 2020 because she was moving. These submissions are substantiated by emails between the respondent and the applicant's former employer.

13To conclude, the applicant has not met her onus of proving, on a balance of probabilities, that she suffered a substantial inability to perform the essential tasks of her employment as a part-time retail manager as a result of, and within 104 weeks of the accident.

The disputed physical therapy is not reasonable and necessary

14The applicant bears the onus of establishing, on a balance of probabilities, that the medical benefits she seeks in this application are reasonable and necessary as a result of the accident under s. 15 of the Schedule. Although the respondent has determined that the applicant is no longer subject to the Minor Injury Guideline because of her vehicular anxiety, she still bears the onus of proving that the treatment and assessment she seeks - physical therapy and a psychological assessment – are reasonable and necessary as a result of the accident.

15The applicant has tendered minimal medical documentation to establish her accident-related physical and psychological impairments. The Disability Certificate she has tendered, dated January 4, 2019, lists soft tissue sprain and strain injuries. There are no records from the applicant's family physician dealing with accident-related injuries or complaints.

16The only medical evidence tendered by the applicant in support of the claimed psychological assessment is a psychological pre-screening report prepared by Dr. Leon Steiner, the psychologist who proposed the disputed assessment. It is well-established that an OCF-18 alone is not evidence of the reasonableness and necessity of a proposed treatment or assessment. The psychological pre-screen report, which is just over one page in length, suffers from the same evidentiary frailties as an OCF-18 tendered to establish that a proposed treatment or assessment satisfies the test in s. 15 of the Schedule. It was prepared by the same practitioner who would conduct the assessment if approved by the insurer to do so. It is not corroborated by objective medical records such as a family doctor's clinical notes and records.

17The respondent's psychiatric assessor, Dr. Joseph Jeffries, found that although the applicant suffered from vehicular phobia and vehicular anxiety, the disputed psychological assessment was not reasonable and necessary because the applicant's irritability was secondary to sleep disturbances and pain and was not remediable through psychological intervention. He further opined that the applicant's phobia was the clinically associated sequelae of the trauma of the accident.

18I find Dr. Jeffries' opinion on the applicant's psychological condition to be contradictory and unhelpful. Dr. Jeffries' opined that the applicant had vehicular anxiety capable of removing her from the Minor Injury Guideline, but he also stated that her psychological symptoms were sequelae of the trauma of the accident, which would undermine his Minor Injury Guideline recommendation. He stated that the applicant's irritability was not remediable through psychological intervention but recommended driving lessons with an instructor familiar with driving anxiety.

19Setting aside the difficulties with Dr. Jeffries' report, I find that the psychological concerns he details, like those documented in Dr. Steiner's psychological pre-screen report, do not suggest the probability of psychological impairment on the part of the applicant that would make a formal psychological assessment reasonable and necessary. There is no evidence of functional impairment for psychological reasons; at the time the psychological assessment was proposed, the applicant was working and was independent in her activities of daily living. My finding on this issue is further supported by the lack of objective medical evidence from the applicant's family physician about psychological concerns, despite her visiting her family physician more than half a dozen times in the two months leading up to Dr. Steiner's pre-screening.

20The applicant has not proven, on a balance of probabilities, that the medical benefits she seeks are reasonable and necessary as a result of the accident. Simply put, she has failed to discharge her evidentiary onus. I must dismiss the application. Since no benefits are owing, no interest is payable.

CONCLUSION

21The applicant is not entitled to an income replacement benefit. The applicant is not entitled to the claimed medical benefits. No benefits are payable, and no interest is owing. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance Co., 2015 ONSC 3635.