Citation: Zia v. Economical Insurance Company, 2022 ONLAT 20-014022/AABS

Licence Appeal Tribunal File Number: 20-014022/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:

Huzaifa Zia Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Huzaifa Zia, Applicant Terio Francis, Counsel Dana Reyes, Counsel (Observer)

For the Respondent: Courtney Sparks, AB Specialist Yann Grand-Clement, Counsel

Tribunal Observers: Brett Todd, Vice Chair; Jan Dymond, Vice Chair; Tyler Moore, Member; Terry Prowse, Member; Harry Adamidis, Member

HEARD: by Videoconference: March 29, 30 and 31, 2022

BACKGROUND

1Huzaifa Zia (the “applicant”) was involved in an automobile accident on January 14, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Economical Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was held, but the parties were unable to resolve the issues in dispute. The matter then proceeded to a videoconference hearing on March 29, 30 and 31, 2022, where I heard the testimony of the applicant. On behalf of the respondent, I heard the testimony of the insurer examination (IE) assessors: Anghela Sivananthan, occupational therapist, Dr. Saghatoslami, psychologist and Dr. Urovitz, orthopaedic surgeon.

ISSUES IN DISPUTE[^2]

3I have been asked to decide the following issues:

1. Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from November 2, 2020 to the two-year mark?
2. Is the applicant entitled to $2,569.40 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre (Mackenzie Medical) in a treatment plan/OCF-18 (“OCF-18”) dated September 3, 2020?
3. Is the applicant entitled to $2,229.50 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated October 15, 2020?
4. Is the applicant entitled to $1,823.60 for physiotherapy services, proposed by Mackenzie Medical in an OCF-18 dated December 1, 2020?
5. Is the applicant entitled to $407.89 ($770.00 less $362.11 approved) for assistive devices, proposed by Mackenzie Medical in an OCF-18 (“plan”) dated July 2, 2020?
6. Is the applicant entitled to interest on any overdue payment of benefits?
7. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4After reviewing both parties’ submissions and all of the evidence and for the reasons that follow, I find:

1. The applicant is not entitled to a NEB for the time period claimed.
2. The applicant is entitled to the balance of the OCF-18 for the assistive devices recommended by MacKenzie Medical within the costs provided for in the Financial Services Commission of Ontario’s Cost of Goods Guideline - Superintendent’s Guideline No. 02/16 (FSCO Guideline), plus interest on the amounts I have determined are reasonable and necessary.
3. The applicant is entitled to the three OCF-18s recommended by MacKenzie Medical for physiotherapy, plus interest.
4. The applicant is not entitled to an award.

PROCEDURAL ISSUE

5At the beginning of the hearing, the applicant brought a motion seeking to cross-examine the adjuster on the handling of his claim. The applicant argues that the adjuster’s testimony is necessary as it is relevant to his claim for an award. The applicant provided no explanation for why he was making this request on the first day of the hearing. The respondent opposed the request on the basis that the applicant did not provide advanced notice of his intention to call the adjuster as a witness pursuant to the Tribunal’s case conference report and order. Further, to date, the applicant has not provided particulars of his award claim. The respondent submits that it is not appropriate for the applicant to make this request at the hearing as it is trial by ambush. It would be procedurally unfair to the respondent to allow the applicant’s request as it has a right to understand the case against it.

6I agree with the respondent and decline the applicant’s request to cross-examine the adjuster. No explanation was provided by the applicant for why he was making this request on the first day of the hearing. In my view, there was ample time in advance of the hearing to bring a motion requesting to summons the adjuster and provide the respondent with particulars of the award claim. I agree that it would be prejudicial and procedurally unfair to the respondent to entertain such a request at this late stage in the process.

BACKGROUND

7On January 14, 2020, the applicant was a passenger in a vehicle involved in an accident when the driver of the vehicle he was in, lost control and hit a cement pole. The applicant went to the hospital and x-rays were taken which revealed that he sustained a comminuted radial head fracture with dislocation of the radial head (fractured left elbow). The applicant underwent surgical intervention on January 18, 2020, in which a prothesis was inserted into his left elbow and his left arm was placed in a cast.

8On February 3, 2020, the cast and staples were removed from the applicant’s left arm and hospital records confirmed that the wound had healed. It was recommended that he begin gentle range of motion exercises with a physiotherapist. He then commenced treatment at MacKenzie Medical.

Is the applicant entitled to a NEB in the amount of $185 per week from November 2, 2020 to the two-year mark?

9The applicant is not entitled to payment of a NEB for the time period claimed.

10Section 12(1) provides that an insurer shall pay an NEB 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 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “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 Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical³, which focuses on a comparison of the applicant’s pre-and post-accident activities.

11Section 12 (3) (b) of the Schedule provides that an insurer is not liable to pay a NEB before a person is 18 years old. The applicant was 17 at the time of the accident and did not qualify for the NEB until September 13, 2020, when he turned 18. The respondent paid the applicant the NEB from September 13, 2020 to November 20, 2020.

12In support of his claim for a NEB, the applicant relies on the OCF-3 of Dr. Jakeer, chiropractor dated February 10, 2020, which supports that he had a complete inability to carry on a normal life as a result of the accident. He also relies on the clinical notes and records (CNRs) of Dr. Hodgins, treating orthopaedic surgeon and Dr. Udoeyop, his family doctor and s.25 reports of Dr. Getahun, orthopaedic surgeon dated October 14, 2021 and Anna Kozina, psychologist, dated January 30, 2021.

13The respondent argues that the applicant is not entitled to the NEB for the time-period claimed as the evidence supports that he carries out more activities of daily living post-accident than he did pre-accident. It relies on the reports of IE assessors: Ms. Sivananthan, Dr. Saghatoslami, and Dr. Urovitz dated July 5, 2021. For the following reasons, I agree with the respondent.

14As set out in Heath the first step in determining whether an individual qualifies for a NEB is to compare their pre and post-accident activities of daily living. Prior to the accident the applicant was independent in his self-care and activities of daily living. The applicant was unemployed and was a Grade 12 student in high school. He had an active lifestyle and enjoyed playing basketball, badminton, cycling, and going to the gym. He also hung out with his friends and had a good relationship with his family members, to whom he enjoyed going to restaurants, parks, cottages and watching TV.

15While I acknowledge that the applicant may have had some more serious functional limitations in his daily activities in the period shortly following the accident, I do not find that he has any ongoing accident-related limitations that would result in a complete inability to carry on a normal life from November 2, 2020 onwards. As of this time-period, I find the applicant was independent with his personal care tasks. I also agree with the respondent that the evidence supports that he has carried out more activities of daily living post-accident than he did pre-accident. For example, with the exception of shoveling snow, the applicant does more housekeeping and home maintenance tasks post-accident then he did pre-accident. The IE report of Ms. Sivananthan confirms that the applicant was not responsible for many housekeeping and home maintenance tasks pre-accident as he was in high school. He would help with laundry, garbage and snow removal but he was not responsible for any other tasks. Post-accident the applicant is responsible for dusting, washing dishes, sweeping and vacuuming and cleaning his own room and bathroom. The applicant testified that he does not agree that he does more housekeeping tasks post-accident. However, he did not disagree with the findings of Ms. Sivananthan’s report. Therefore, I accept her report as an accurate representation of his post-accident functional abilities.

16The applicant also testified that post-accident he continues to play basketball, although he sometimes has pain in his left hand and arm. He has also continued to go cycling and has worked out at home because gyms have been closed due to Covid 19. He also acknowledged that he has maintained good relationships with his family and friends.

17Following the accident, the applicant graduated from high school and has successfully completed two years of university and he is a straight A student. The applicant submits that he has received academic accommodation since February 18, 2022, in which he was provided with additional time to write assignments and exams due to left arm pain and stiffness. He contends that the fact that he is being accommodated at school supports he has ongoing limitations and meets the complete inability test. I do not find the fact that he has received academic accommodation supports that he has a complete inability to carry on a normal life as a result of his accident-related impairments. Furthermore, in May 2021, the applicant gained summer employment with his university as a research assistant which required him to work 7 hours a day 5 days a week. He has also worked as a peer tutor. I agree with the respondent that the applicant has not been continuously prevented from engaging in substantially all of the activities in which he engaged before the accident, as a result of any accident-related impairment.

18I also do not find that the medical evidence relied upon by the applicant persuasive that he has a complete inability to carry on a normal life. While the OCF-3 supports that the applicant meets the disability test, I do not find the medical reports relied upon by the applicant reliable. The applicant submitted the report of Dr. Getahun in which the doctor opines that he has a complete inability to carry on a normal life as a result of his left elbow impairment. I find Dr. Getahun’s report inconsistent with the applicant’s testimony and it was also lacking in detail and analysis regarding the applicant’s pre and post-activities of daily living.

19The applicant also relied on the report of Ms. Kozina which supports that he sustained a psychological impairment as a result of the accident which results in a complete inability for him to carry on a normal life. Ms. Kozina diagnosed the applicant with Other Specified Trauma – and Stressor Related Disorder – Adjustment Like Disorder with Prolonged Duration of More than Six Months with Mixed Anxiety and Depressive Mood and F40.2 Specific Phobia, Situational Type (travelling as a passenger). I find Ms. Kozina’s diagnosis inconsistent with the applicant’s testimony about his accident-related impairments. The applicant’s testimony focussed on his left elbow impairment. With the exception of having some vehicular anxiety the applicant did not testify that any accident-related psychological impairment resulted in any functional limitations in his daily activities.

20Overall, I find the applicant’s testimony and his reports to assessors about his post-accident functional limitations inconsistent. For example, the applicant testified that he has continued to play basketball and go cycling and that he still hangs out with friends post-accident. Yet, Dr. Getahun and Ms. Kozina note that applicant is socially withdrawn and that he does carry out any of his pre-accident recreational activities. The applicant’s testimony was unhelpful in clarifying these inconsistencies. Further, the applicant did not testify that the IE assessors’ reports were not accurate or that there was a reason why their reports could not be trusted. In addition, Dr. Getahun and Ms. Kozina did not review any medical records in completing their assessments and relied on the applicant’s self-reports. Finally, the respondent argues that the reports of Dr. Getahun and Ms. Kozina should be given little weight because these experts did not testify so their opinions could not be tested. I agree. Overall, I do not find these reports helpful for the reasons noted above.

21I find the conclusions reached by Ms. Sivananthan, Dr. Saghatoslami and Dr. Urovitz in relation to the NEB more consistent with the applicant’s testimony and the rest of the evidence before me.

22I also do not find the CNRs of Dr. Hodgins and Dr. Udoeyop helpful in supporting that the applicant meets the test for a NEB. The CNRs support that the applicant complained of ongoing pain and stiffness in his left elbow and a few of the notes reference vehicular anxiety and accommodations at school. However, they do not make any reference to any other limitations from either a physical or psychological perspective.

23For all of the above-reasons, the applicant has failed to prove on a balance of probabilities that any accident-related impairments have continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Therefore, he has not met his onus in meeting the test for entitlement to a NEB.

Is the applicant entitled to the three OCF-18s for physiotherapy recommended by Mackenzie Medical?

24I find the three OCF-18s for physical therapy recommended by Mackenzie Medical reasonable and necessary.

25To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

26To avoid repetition, I will address the three OCF-18s for physiotherapy together as they involve the same evidence. All three OCF-18s dated September 3; October 15 and December 1, 2020 were authored by Dr. Pereira, chiropractor and recommended various forms of physical therapy including chiropractic treatment, acupuncture, physiotherapy, massage and heat applications. The OCF-18s varied slightly as far as the dollar amounts and duration. The goals of all three treatment plans were pain reduction and increase strength and range of motion (ROM) in order to return the applicant to his activities of daily living.

27The applicant argues that all three OCF-18s are reasonable and necessary as past physical therapy received to date has achieved its goals of pain reduction, increased strength and ROM in his left elbow. The applicant relies on the CNRs of Dr. Hodgins, Dr. Udoeyop and Mackenzie Medical in support of his position. He also relies on the report of Dr. Getahun who recommended that the applicant receive ongoing physical therapy.

28The respondent relied on the IE of Dr. Urovitz dated November 4, 2020, who opined that the applicant had reached maximum medical recovery from his injuries. Furthermore, that further facility-based treatment was not reasonable and necessary. For the following reasons, I agree with the applicant and find all three OCF-18s for physical therapy reasonable and necessary.

29I find that the applicant sustained an objective impairment as he fractured his left elbow which required the insertion of a prothesis. I also find that the CNRs of both Dr. Udoeyop and Dr. Hodgins support that the applicant complained of ongoing pain and stiffness in his left elbow during the relevant time period. Furthermore, as of the dates the OCF-18s were submitted he still had limited ROM in his elbow and complained about issues with his left shoulder. In a consultation note, Dr. Hodgins indicated that the issues with the left shoulder were likely as a result of the change in mechanics of the applicant’s left elbow. Finally, both Dr. Udoeyop and Dr. Hodgins both recommended that the applicant receive ongoing physical therapy to treat his left elbow impairment during the time period the OCF-18s were submitted.

30I also find the OCF-18s will achieve their stated objectives of pain relief and increase strength and ROM of the applicant’s left elbow impairment. The applicant testified that past physical therapy received to date has resulted in the temporary pain relief and has improved his ROM. I believe the applicant’s testimony on this point. In addition, I find that Dr. Urovitz’s opinion that the applicant had achieved maximum medical recovery in his IE dated November 4, 2020, was contradicted by his report dated July 5, 2021.

31In between Dr. Urovitz’s two assessments, the applicant continued to attend physical therapy. Dr. Urovitz’s second report notes improvements to the applicant’s ROM in his left elbow. Therefore, I do not accept Dr. Urovitz’s opinion that the applicant had achieved maximum medical recovery from facility-based treatment as of November 2020, which is the time period the three OCF-18s were submitted. As a result, I prefer the recommendations of Dr. Udoeyop and Dr. Hodgins.

32Neither party made submissions that the costs of the OCF-18s for physical therapy were excessive. Therefore, I accept that the costs of same are reasonable.

33The applicant has met his onus in proving on a balance of probabilities that the three OCF-18s of Mackenzie Medical recommending physical therapy are reasonable and necessary.

Is the applicant entitled to $407.89 ($770.00 less $362.11 approved) for assistive devices, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated July 2, 2020?

34The applicant is entitled to the balance of the OCF-18 for the assistive devices recommended by MacKenzie Medical within the costs provided for in FSCO’s Guideline.

35This OCF-18 was also prepared by Dr. Pereira and the goal of the OCF-18 was “to aid the applicant in recovery from mva injuries by decreasing functional strain on injured tissues.” The OCF-18 recommended the following assistive devices:

TENS Unit: $450.00 TENS Unit Accessories: $25.00 Cervical Pillow: $50.00 TheraBand Resistance Bands: $50.00 Exercise Ball: $60.00 Cryoderm Gel: $35.00

36The respondent sent the applicant an explanation of benefits (EOB) dated July 8, 2020 partially approving the OCF-18 in the amount of $362.11. The following items and amounts were approved for the following amounts:

TENS Unit: $133.00 Cervical Pillow: $89.25 Cryoderm Gel: $35.00

37In its EOB, the respondent indicated that as per FSCO’s Guideline the maximum payable for the goods requested is the retail price or the price actually paid to acquire them, whichever is lower. Section 268.2 of the Insurance Act, requires FSCO Guidelines to be considered in any determination of accident benefits. Therefore, I accept the amounts the respondent agreed to pay for the TENS Unit, Cervical Pillow and Cryoderm Gel as being reasonable and necessary.

38The EOB did not provide any explanation for why the TENs unit accessories, TheraBand equipment, or exercise ball were not considered to be reasonable and necessary. In my view, since the respondent determined that the TENS Unit was reasonable and necessary, the accessories (replacement pads) would also be reasonable and necessary. In addition, I find the exercise ball and TheraBand equipment are also reasonable and necessary as even Dr. Urovitz recommended that the applicant complete a home exercise program. However, as per the FSCO Guideline the maximum payable is the retail price, or the price paid to acquire these goods. Neither party directed me to any evidence relating to the appropriate retail price of these goods and services. Therefore, I find that the applicant is entitled to the TENs accessories, exercise ball and TheraBand equipment within the costs provided for by the FSCO Guideline.

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

39The applicant is entitled to interest on the three OCF-18s for physical therapy. The applicant is not entitled to interest on the OCF-18 for assistive devices.

40Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the three OCF-18s for physiotherapy are reasonable and necessary, the applicant is entitled to interest. The applicant is entitled to payment of interest on the amount of the OCF-18 for assistive devices which I have determined to be reasonable and necessary.

Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

41The respondent is not liable to pay an award.

42The applicant seeks an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”⁴

43The applicant argues that he is entitled to an award because the respondent unreasonably withheld the disputed benefits which prevented him from receiving treatment. Further, the respondent has displayed a pattern of ignoring important medical records and disregarding OCF-18s. Further, Dr. Urovitz’s IE was flawed as he opined that the applicant achieved maximum medical recovery when he had not. In addition, there was a delay in adjusting his file as the respondent did not assess his entitlement to NEBs until July 2021.

44The respondent maintains that an award is not appropriate in these circumstances as it simply relied on the opinion of its medical assessors. This is not conduct that meets the threshold for being unreasonable, excessive, stubborn or unyielding. I agree.

45The applicant relies on various decisions of this Tribunal in support of his claim for an award. I do not find the case law relied upon by the applicant helpful to his position as the fact scenarios addressed in those decisions are distinguishable. For example, in Halstead v. Aviva⁵ the adjudicator determined that an award was appropriate because the insurer did not schedule an IE, did not provide a medical reason for the denial of the benefit and failed to consider medical evidence supporting that the benefit should be approved. The applicant submits that the respondent failed to consider medical evidence in denying the benefits. However, he did not submit any evidence of when medical records were submitted and/or how they were ignored by the respondent. Further, in this case the respondent scheduled IEs and relied on those opinions in denying the benefits.

46The applicant submitted A.J. v. Security National⁶ where I determined that the insurer’s conduct was unreasonable because it held the insured person in non-compliance for not submitting a disability certificate before the insured person was eligible to claim the benefit. The insurer then failed to address the disability certificate when it was submitted and ignored the insured persons requests for updates. No such conduct has occurred in the present case.

47Finally, the applicant relies on Kaur v. Intact⁷ which I do not find supports the applicant’s position. In that case, the adjudicator determined that an award was not appropriate because the insurer is entitled to rely on IEs in denying benefits, which is a position it is entitled to take. The case law has also established that an award is not payable in situations where an insurer was wrong.

48The applicant also maintains that the respondent is liable to pay an award as it did not address the applicant’s entitlement to the NEB until July 2021. In light of my decision on the NEB, the respondent is not liable to pay an award as I do not find any payments of the NEB were overdue or that it was unreasonably withheld.

49The applicant has not met his onus in proving that the respondent unreasonably withheld any of the disputed benefits or that its behaviour met the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I do not find that the respondent is liable to pay an award.

ORDER

50For all of the above-noted reasons, I find:

1. The applicant is not entitled to a NEB from November 2, 2020 to the two-year mark.
2. The applicant is entitled to the balance of the OCF-18 for the assistive devices recommended by MacKenzie Medical within the costs provided for FSCO’s Guideline, plus interest.
3. The applicant is entitled to the three OCF-18s recommended by MacKenzie Medical for physiotherapy, plus interest pursuant to s.51 of the Schedule.
4. The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.
3. 4Plowright and Wellington Insurance Company (FSCO A-003985, October 29, 1993) at page 17
4. 5Halstead v. Aviva Insurance Company, 2020 CanLII 101822 (ON LAT)
5. 6A.J. v. Security National Insurance Co. 2021 CanLII 35586 (ON LAT)
6. 7Kaur v. Intact Insurance Company, 2022 CanLII 16929 (ON LAT)
7. 2At the beginning of the hearing the applicant withdrew the two treatment plans recommended by Princeton Hills Medical Assessments.