Brenda Jendrika v. Intact Insurance Company, 2022 CanLII 45267

Licence Appeal Tribunal

Citation: Jendrika v. Intact Insurance Company, 2022 ONLAT 19-12382/AABS

Licence Appeal Tribunal File Number: 19-012382/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:

Brenda Jendrika

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Brenda Jendrika, Applicant

Rizwan Wancho, Paralegal

For the Respondent:

David Koots, Counsel

Heard

By Way of Written Submissions

BACKGROUND

1The applicant was injured in an accident on December 4, 2016, and sought various benefits from the respondent, Intact Insurance Company pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The applicant claims there are substantial medical records supporting the injuries and the need for treatment and examinations.

2The respondent denied the income replacement benefit and the medical benefit and the cost of examinations for various assessments in dispute on the basis of its section 44 insurer assessments and because they are not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are listed as issues in dispute:²

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (MIG)³?

b. Is the applicant entitled to a weekly income replacement benefit for $302.21 from November 12, 2017 to date and ongoing?

c. Are the following treatment plans⁴ reasonable and necessary?

i. Is the applicant entitled to a medical benefit for $598.50⁵ after partial approval for physiotherapy recommended by Physiotherapy Associates of Port Perry in a treatment plan dated November 6, 2017?

ii. Is the applicant entitled to the following assessments recommended by SPARC as follows:

1. $2200 for a physiatry assessment in a treatment plan submitted on June 7, 2018⁶ and denied June 15, 2018?
2. $2200 for a chronic pain assessment in a treatment plan submitted on March 26, 2019 and denied April 11, 2019?⁷
3. $2200 for an ENT assessment in a treatment plan submitted on May 3, 2019 and denied June 6, 2019?
4. $2200 for a neurological assessment in a treatment plan submitted on May 3, 2019 and denied June 6, 2019?
5. $2,198.79⁸ for a psychological assessment in a treatment plan submitted on May 14, 2019 and denied June 5, 2019?

iii. Is the applicant entitled to $2200 for a dental assessment recommended by Altaf Khimji,⁹ physiotherapist in a treatment plan dated May 3, 2019?

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

RESULT

4For the reasons set out below, I find the applicant is not entitled to an income replacement benefit. The treatment plans are not reasonable and necessary. As no benefits are overdue, no interest is payable.

Applicability of the Minor Injury Guideline

5I find neither that neither party in their written submissions have raised any argument or medical evidence in respect a determination of MIG. The applicant at line 259 states “the insurer has changed its stance of MIG to Non-Cat” and at line 283 states “Insurer did change the determination of injury from MIG to Non-CAT Via letter dated 23 Nov. 2020” (the 23 November 2020 letter is not attached to the written submissions). The respondent submissions are silent on this point. Based on these statements and in the absence of submissions on MIG from both parties, I assume MIG is no longer in dispute and make no determination on this issue.

OVERVIEW

The Accident

6The applicant claims she was injured when her vehicle was rear ended by another vehicle. The applicant went to the emergency department where she as diagnosed with a concussion. The applicant claims she was at a full stop when her vehicle was struck. The respondent maintains the vehicle was hit when it was travelling at a low speed. The evidence indicates the applicant did not hit her head in the collision, she did not lose consciousness and the air bags did not deploy. The respondent submits this accident was a minor accident and the property damage and cost to repair the vehicle was $2166.06.¹⁰

The Applicant’s Injuries[^11]

7The applicant claims the following injuries were sustained from the accident including but not limited to:

a. injury to her neck and low and central back. b. a concussion and post concussion symptoms. c. severe tinnitus, dizziness, and temporomandibular joint dysfunction (TMJ). d. left elbow and wrist area injury. e. left hand numbness and arm pain. f. chronic pain. g. degenerative changes in the lumbar spine aggravated by the accident. h. diffuse disc bulging with disc herniation. i. multi facet osteoarthritis throughout the thoracic spine. j. whiplash. k. headaches. l. possible neuropathic pain due to radiculopathy. m. severe left leg pain. n. sleep disturbances, tiredness, impairment of concentration and mood. o. psychological impairment.

8Two disability certificates (OCF-3s)¹² signed by the applicant were submitted into evidence by the applicant to support the complaints of injuries. The OCF-3s however are authored by different medical professionals, are dated one week apart and contain inconsistent information. The OCF-3 by Mathew Herron, physiotherapist outlines the applicant’s account of the accident and her report of injuries include injuries to the head, neck, back, arm with knee pain and severe ringing in her ears arising directly after the accident. Mathew Herron lists the injuries in order of severity as a concussion, WAD-2, low back pain and injury of tendon of the forearm. The applicant in the OCF-3 states she cannot work within the first 104 weeks from the date of the accident due to her injuries and she does not suffer a complete inability to carry on a normal life, or caregiving activities and housekeeping. Prior conditions are noted as unknown. The last day worked is noted as December 01, 2016 which is three days before the accident.

9The second OCF-3 is completed by Dr. Wilson, physician, neurology and sleep consultant and contains a list of different injuries. These injuries are handwritten and difficult to read. They are listed in order of severity as a post concussion syndrome, positional vertigo, carpal tunnel syndrome, myofascial injury spine, tenosynovitis left wrist, tendon tear left elbow, lumbar degeneration and radiculopathy. Additional injuries listed includes headaches, impaired concentration, vertigo, painful spine, painful left hand, left elbow and leg. The OCF-3 indicates the applicant cannot work, cannot work on modified duties and she suffers a complete inability to carry on a normal life. No prior conditions are noted. The length of disability is noted for more than 12 weeks.

Income Replacement Benefit – Pre 104 weeks and Post 104 weeks IRB

10There are two statutory tests to meet to be entitled to an IRB, each one for a different claim period. The applicant claims she meets both statutory tests. For the period being sought by the applicant in the pre-104 week period from November 12, 2017 to December 3, 2018 (the pre-104 week IRB), section 5(1) of the Schedule requires the applicant to establish that 1) she was employed or self-employed at the time of the accident and 2) during the 104 week period after the accident she suffered a substantial inability to perform the essential tasks of her pre-accident employment.

11The respondent paid IRBs until November 12, 2017 at which time it denied the IRB claim based on a multidisciplinary assessment report of its IE assessors Dr. Boucher and Dr. Esmail.

12The statutory test for an IRB post 104 weeks is set out in Section 6 (1) of the Schedule which provides that for the period after the first 104 weeks of disability, the applicant must demonstrate that he or she suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. The applicant claims the IRB in the post-104 week IRB period from December 4, 2018 to date and ongoing.

13As discussed below, I find based on the totality of the evidence, the applicant has not adduced sufficient evidence to support her claim that she has a substantial inability to complete the essential tasks of her pre-accident employment warranting the pre-104 week IRB from November 12, 2017 to December 3, 2018. She has also not presented sufficient evidence to establish she suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience warranting the post-104 week IRB.

The Applicant’s Medical Evidence

14The applicant submits a number of medical examinations by various medical doctors in support of her claim that she meets the IRB claim. The medical opinions presented by the applicant do not offer an opinion on how the applicant meets the statutory tests for the IRB. They focus on whether the impairments are accident related only. This includes the following:

Otolaryngologist Examinations

15The applicant was examined by Dr. Siomra, otolaryngologist on July 26, 2017 who concluded the applicant sustained a whiplash injury. He did not diagnose her with a concussion but stated she “had been told this was associated with a concussion”. He noted she had tinnitus and TMJ worse on her right side. He noted the tinnitus could be due to the TMJ. He suggested a bite guard. His diagnosis of a whiplash is a minor injury and I find is not evidence of a medical condition that would support the applicant’s claim that she cannot work. Attached to the letter of Dr. Siomra were an MRI taken of the head on June 20, 2017 which was normal other than a notation of a tiny aneurism, an MRI of the neck dated June 22, 2017 which was normal and an MRI dated June 21, 2017 which showed a small disc protrusion at C6-7 and noted no significant cervical degenerative changes.

16The applicant was examined by Dr. Abraham Crotin, otolaryngologist, on October 29, 2019¹³ for ongoing complaints of dizziness and ringing in her ears. In his letter dated October 29, 2019, Dr. Crotin notes her ears were normal and she had good range of motion in her neck with no pain. His test for positional vertigo was negative. He states if she had positional vertigo there was no sign of it during his examination.

Neurological Assessments

17The applicant was assessed by Dr. Ronald Wilson, physician specializing in neurology and sleep disorders. The applicant submits these reports support her IRB claim. These include the following:

a. Examination of July 10, 2017 Dr. Wilson states “this woman’s injury resulted in concussion”¹⁴ and that she has developed post-concussion syndrome (PCS). This letter is unsigned and only part of the letter was produced by the applicant via written submissions.

b. Examination of July 27, 2017¹⁵ Dr. Wilson states the applicant has and continues to have pain in her left arm and lower back. He suggests an evaluation of the lower back and MRI is needed.

c. Examination on September 18, 2017¹⁶. The applicant’s pain continues in lower back, left leg, left arm, with headaches and dizziness. An MRI scan of the spine showed degenerative changes and at level L5/S1, it is noted there was a disc protrusion and annular tearing. He notes the EMG and nerve conduction tests were completed and normal. In his opinion, the applicant sustained a concussion and she has experienced PCS consisting of headaches, dizziness, tiredness, sleep disturbances, impairment of concentration and short-term memory. Dr. Wilson opines the degenerative changes in her spine were present prior to the accident but aggravated by it. As a result, she has developed symptoms of L5/S1 radiculopathy due to mechanical disturbances of the lumbar spine.

d. Examination on October 23, 2017¹⁷ refers to ongoing pain complaints, a concussion and PCS. The doctor notes the applicant has a mechanical disturbance of the elbow and wrist area. He notes she has anemia which could be causing her sense of instability. Dr. Wilson refers to a report¹⁸ from the Eye Association of Port Perry dated April 25, 2017 which refers to an abnormal visual test. I note the applicant never mentioned an eye injury to any assessors or physician. The chronic pain report by Dr. Zahavi discussed below indicated under the heading past medical and surgical history that the applicant has had 11 eye surgeries¹⁹ for recurrent retinal tears due to astigmatism. I find if there is an abnormal visual test, it is not accident related.

18The remainder of the reports from Dr. Wilson are dated in 2019 indicating a 1.5-year gap in her visits to Dr. Wilson.

a. On May 27, 2019 Dr. Wilson notes her back pain and headaches continue. He states she may have sleep apnea. The records from the Centre for Sleep Disorders dated November 15, 2019 indicate the applicant declined treatment for sleep apnea.

b. On September 9, 2019²⁰ the ultrasound and X-ray of the left elbow of May 27, 2019 shows a small partial thickness tear. The MRI of the spine and neck demonstrate degenerative changes but no myelopathy. He opines her leg pain reflects degenerative changes.

c. On October 28, 2019²¹ Dr. Wilson notes an EMG and nerve conduction tests were normal. There is no evidence of cubital (given that Dr. Wilson also completed an OCF-3, I suggest this should read carpal) tunnel syndrome. Attached is a letter dated October 29, 2019 by Dr. Crotin regarding positional vertigo who states the TMJ palpations are normal. There was a good range of neck motion without pain. There is no finding of positional vertigo.

19The medical reports noted above from Dr. Wilson do not support the claim for an IRB claim. There is no evidence presented that after November 12, 2017 and in 2019 that any of the medical conditions such as back pain or headaches are accident-related injuries that prevent the applicant from working.

Physiatry assessment

20Dr. Marchie, physiatrist examined the applicant on December 12, 2019 to assess the applicant’s complaints of pain on the posterior neck, the entire back and left elbow. He diagnosed the applicant with a cervical/thoracic/lumbar disc degeneration with lumbar radiculopathy.²² Although this is presented as a report to support an IRB claim by the applicant, there is no indication by Dr. Marchie’s report that the degeneration is due to the accident.

TMJ Assessment

21The applicant relies on a TMJ assessment by Dr. Oksana Pikh, dentist²³ Dr. Pikh examined the applicant on August 15, 2019 for ongoing TMJ complaints. Dr. Pikh noted one of the significant challenges was that the examiner had to deal with was differentiating of pre-existing conditions from those acquired as a result of the MVA as well as how much impact the whiplash had on pre-existing asymptomatic condition. Dr. Pikh does not state her condition is accident related

Chronic pain assessment[^24]

22The applicant reported in May 2019 to Dr. Zahavi, physician that her current pain complaints are low back pain, neck, shoulder and left elbow pain and left knee pain. She had a constant burning and sharp stabbing pain. She reported that despite physiotherapy treatment, her back, neck shoulder and elbow pain have deteriorated and are twice as bad as after the accident. On examination, the left elbow and knee were found to have normal range of motion. The lumbar and cervical range of motion was restricted. He found no tenderness at the TMJ areas. His diagnosis was chronic pain as her pain has persisted for 2.5 years after the accident. He also stated that a post-concussion and a traumatic brain injury seemed to be present. I question this latter diagnosis as it is beyond his medical specialty. Dr. Zahari indicated in his report that neurological and neurocognitive testing were outside of the scope of the assessment. The same applied to the applicant’s complaints with balance issues and issues of concentration and focus.

The Respondent’s Position on the Injuries

Pre-existing Injuries

23The respondent maintains that there are a number of pre-existing injuries including left elbow pain, hand numbness, neurological complaints that existed before the accident and were not disclosed by the applicant to its own physicians or the section 44 IE assessors. The respondent indicates the applicant failed to advise any of the assessors or the OHIP specialists that she had pre-existing left elbow pain and left-hand numbness. The respondent also submits that the medical records show the applicant had a referral to an OHIP Neurologist, Dr. Shariq Mumtaz on July 13, 2016, five months before the accident.²⁵ The applicant’s main complaint for Dr. Mumtaz was left shoulder pain radiating to her left side. The medical records also revealed that the applicant had an accident at age 30 when she hurt her lower back and since then has complained of low back pain with radiation to bilateral lower extremities. A nerve conduction study of 2016 was abnormal, suggested the possibility of carpal tunnel syndrome and noted left elbow concerns.²⁶ The respondent states these conditions were not disclosed to the post-accident OHIP Neurologist (Dr. Wilson), the OHIP Physiatrists (Drs. Katz and Marchie), nor any of the four OHIP ENT doctors who assessed the applicant’s post-accident neurological complaints. Further, the applicant also did not report any left elbow pain post-accident as an accident related injury until the summer of 2017. The respondent submits that the applicant’s failure to disclose her pre-accident medical history calls into question her self-reports of ongoing pain complaints since the date of the accident. I agree that there are issues of credibility as to the evidence of the applicant and inability to work.

Degenerative changes

24The applicant has also had a number of MRIs of her thoracic spine and lumbar spine including on August 10 and 11, 2017. Both scans showed significant degenerative changes which the respondent submits are not causally related to the subject minor accident and are the likely source of the applicant’s ongoing back pain. The thoracic spine MRI also showed multilevel facet osteoarthritis throughout the thoracic spine. The lumbar spine MRI noted “mild degenerative changes” at the L4 -L5 level where there was a broad-based posterior disc protrusion and annular tearing.²⁷ An additional cervical spine MRI on July 18, 2019 showed additional “mild degenerative changes” including a C6-7 disc bulging with a very small broad left paracentral disc protrusion and minor osteophyte.²⁸

25The respondent maintains that although the MRIs showed degenerative changes noted in the thoracic, lumbar and cervical spine, these are not accident related. I agree. On September 9, 2019, Dr. Wilson stated the applicant’s leg reflected the effects of S1 radiculopathy due to degenerative changes involving the lumbar spine. Further, Dr. Wilson indicated that the degenerative changes involving the cervical, thoracic and lumbar spine were present prior to the accident although aggravated by it.²⁹

Neurological Complaints

26The applicant was seen by several ENT doctors, including Dr. Abraham Crotin on October 29, 2019³⁰ who states the TMJ palpations are normal. There was a good range of neck motion without pain. There is no finding of positional vertigo. The applicant had a second Neurological Insurer’s Examination, by Dr. Brandon Kucher, neurologist and is dated August 28, 2019.³¹ Dr. Kucher concluded from a neurological standpoint the applicant’s accident-related diagnoses were limited to subjective complaints of headaches.

Concussion

27The diagnosis by the applicant’s treating neurologist (Dr. Wilson) and the emergency room physician has been questioned by the applicant’s own ENT doctors. The applicant was referred to several ENT doctors for assessment. Dr. Artur Gevorgyan, a third ENT doctor examined the applicant on January 7, 2019 to assess her vertigo.³² After his examination, Dr. Gevorgyan queried whether the applicant suffered from post-concussive syndrome as he noted “I cannot explain her symptoms. Her responses were very expressive when checking eye movements and Romberg. This does not fall into any known to me category of vertigo. I’m not even sure this is truly post-concussive syndrome. She has seen two other ENTs with the same opinion, plus a neurologist.”

The pre-accident employment

28The applicant did not submit any employment confirmation forms (OCF-2s) in evidence. The Functional Abilities Evaluation and the Job Site Evaluation noted below indicate the applicant’s primary job at the time of the accident was an office manager in a medical clinic. Her position required her to co-ordinate tasks and schedules for the office. The position was primarily sedentary but required some occasional lifting of office supplies. Mr. Duffy³³ found this position would fall under the light strength requirements.

IE Assessments by the Respondent

29Initial IE assessments are dated June 29, 2017 and include a Physician Assessment by Dr. Michael Boucher, Physician; a Neurological Assessment by Dr. Sherali Esmail, Neurologist; a Functional Abilities Evaluation and a Job Site Evaluation, both by Mr. Duffy, physiotherapist.³⁴

30Dr. Boucher assessed the applicant and in his report of May 31 2017³⁵ noted that the applicant reported ongoing constant pain in her neck, upper back, low back, and headaches, as well as constant bilateral tinnitus and daily positional vertigo. Dr. Boucher noted a functional range of motion. The neurological examination was normal. The upper and lower extremities were examined and normal. There was no evidence of instability in any of the extremity joints. He diagnosed the applicant with cervical myofascial neck strain, lumbosacral myofascial strain, left knee contusion and bilateral shoulder sprain/strain. He noted the applicant reported she felt 25% better overall with respect to her accident related injuries. Despite ongoing pain complaints by the applicant he did not identify any objective evidence of ongoing musculoskeletal neurological or orthopaedic accident-related injury or impairment. Dr. Boucher concluded that from a physical standpoint the applicant was not entitled to an IRB. He concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her employment from a physical perspective.³⁶

31Dr. Boucher was also provided with additional documentation for review and in his Physician Addendum Report of October 16, 2017, his opinion from May 31, 2017 did not change.³⁷ The applicant has sustained soft tissue injuries to her axial spine, left knee and both shoulders. The injuries were consistent with a WAD II, cervical myofascial strain, a lumbosacral myofascial strain, a left knee contusion and a bilateral shoulder strain and sprain. He opined that 90% of individuals with this type on injury would recover within a six week to six month period and the prognosis was positive. He opined that she did not suffer a substantial inability to perform the essential tasks of her employment as a result of the accident based on the soft tissue injuries that she sustained. Dr. Boucher also completed a further assessment on May 15, 2019 and completed a paper review dated July 9, 2019. Dr. Boucher concluded there was no objective evidence of ongoing accident related physical injuries.³⁸

32Dr. Esmail also assessed the applicant on June 15, 2017. He noted that the applicant reported difficulty focussing, tinnitus and dizziness, as well as a constant headache. Dr. Esmail noted that the applicant did not strike her head during the accident and there was no loss of consciousness. Her presentation was atypical, as she was continuing to report significant symptoms of a post-concussive nature but the history was atypical for a concussion. He noted that there was no alteration in her brain function, she had full memory of before and after the accident, and with the accident mechanism it was unlikely the generated force was of sufficient magnitude to cause any traumatic brain injury. He diagnosed the applicant as suffering from post- traumatic headaches which would not prevent her from returning to work.³⁹

33In his June 2017 assessment Dr. Esmail concluded the applicant did not meet the IRB test from a neurological perspective as the mechanism of the accident and reported history did not support the applicant having suffered a traumatic brain injury. He diagnosed the applicant as suffering from post- traumatic headaches which would not prevent her from returning to work.⁴⁰ She did not suffer a substantial inability to perform the essential tasks of her employment.

34Dr. Esmail completed a further examination on October 16, 2017⁴¹ and found that the additional documentation revealed that the applicant may have a tiny cerebral aneurysm but it was not clear as noted by the radiologist whether the abnormality was a true aneurysm or a vascular loop. The vascular abnormality he noted is deemed to be unrelated to the motor vehicle accident. The additional documentation did not lead to any change in his opinion.

35The respondent states that no medical evidence from 2020, 2021 or 2022 other than a Paper Review IE which relied entirely on pre-2020 records has been produced and as such the applicant’s current status is unknown.

36For the reasons that follow, I find the applicant has not met her burden to establish entitlement to an IRB and the medical benefit and cost of the assessments in dispute.

ANALYSIS

Income Replacement Benefit – Pre 104 weeks IRB

37The applicant questions Dr. Boucher’s addendum report on the basis that his report does not include an opinion on the results of certain MRI scans or omits to refer to some injuries such as TMJ. Dr. Boucher noted the August 10 and 11, 2017 MRI is in his report but did not give an opinion on them and as such his addendum opinion is questionable and inaccurate. She submits further Dr. Boucher omits to refer to some injuries such as TMJ.

38I find there is no basis to question Dr. Boucher’s addendum report. Dr. Boucher outlines that his report is based on a number of elements including the self reports from the applicant, a review of medical documentation provided and the results of his in person examination of the applicant. His opinion remained unchanged when he was provided additional documents to review in October 2017. Further, his addendum report in May 2019 and paper review of July 9, 2019 found no evidence of ongoing accident related physical injuries.

39The applicant submits an MRI dated June 20, 2017 which showed a right anterior communicating aneurism was noted by Dr. Esmail who also gave no opinion on the MRI in his report and therefore his opinion is questionable. I disagree in that Dr. Esmail in the addendum noted that to the radiologist it was not clear if the abnormality was a true aneurism or a vascular loop. In any case, he opined the vascular abnormality was unrelated to the accident. Also the radiologist noted the aneurysm was “questionable”⁴² and a follow up CT angiogram was suggested. The applicant in her written submissions omits to note the radiologist stated in his report that the aneurysm was questionable. I find no basis to discredit the IE assessments completed by Dr. Boucher and Dr. Esmail.

40She also raises an issue of bias against Dr. Esmail. This bias was set out in a letter⁴³ she wrote to Dr. Esmail stating that she found his comment offensive when he asked her is she smoked marijuana in that he added “After all you live in Port Perry” and he offended her when she had not remembered the word church and she claims he had said “You do not look like a church going person.” I find these claims are unsupported and do not reflect bias. I do not have any context other than the statement that the applicant felt insulted and offended. There is no support that the doctor is biased in his opinion and I decline make a finding of bias.

41Dr. Esmail also found the applicant’s injuries limited to headaches. Despite a report of significant symptoms of a post-concussive nature, he did not concur that this amounted to a concussion as the history was atypical for a concussion. He noted there was no alteration in her brain function, she had full memory of before and after the accident, and with the accident mechanism it was unlikely the generated force was of sufficient magnitude to cause any traumatic brain injury. He diagnosed the applicant as suffering from post- traumatic headaches. This was also the conclusion of Dr. Kucher.

42Based on the totality of the evidence, I find the applicant has not established that she is entitled to an IRB claim pre-104 weeks. The evidence must establish that she cannot perform her pre-104 weeks employment as an office manager between November 13, 2017 and December 3, 2018. As outlined above, the respondent’s medical evidence calls into question the applicant’s claims of ongoing pain complaints and her condition has deteriorated to a point that she cannot engage in her pre-104 weeks IRB claim during this time period. The applicant’s medical doctors have found the applicant sustained a whiplash injury and headaches. The diagnosis of a concussion and PCS is questioned by Dr. Esmail and her own ENT doctors. There is no finding of positional vertigo or that it is caused by the accident. There is no finding that the accident caused TMJ.

Income Replacement Benefit – Post 104 weeks IRB

43The evidence indicates the applicant returned to one of her pre accident part time positions on July 16, 2019 as a transcriber for a medical doctor.⁴⁴ The respondent states that her return to work is reflected in her 2018, 2019 and 2020-income tax returns which show earnings of $1,600, $3,548, and $23,044 in each year, respectively. The 2021 records have not been provided to date.⁴⁵ The respondent submits that the applicant does not meet the post 104 weeks IRB test because there is no evidence that she has a complete inability to engage in any employment for which she is reasonably suited by education, training or experience, particularly since the applicant has returned to a part-time position as a transcriber. I agree. The fact that she successfully has returned to one of her pre-accident part-time jobs and has income reflected in her 2018, 2019 and 2020-income tax returns which show earnings of $1,600, $3,548, and $23,044 in each year, respectively means she does not meet the post 104 weeks IRB test.

44I also make this finding on the basis that no medical evidence from 2020, 2021 or 2022 has been produced by the applicant who bears the burden of proof to establish entitlement to an IRB claim for the post-104-week IRB period.

Are the Treatment Plans in Dispute Reasonable and Necessary?

45Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation benefits, subject to section 18, that are reasonable and necessary expenses incurred by or on behalf of an insured as a result of the accident.

46The applicant has the onus of proving on a balance of probabilities that the medical benefits and the cost of the assessment in dispute that she seeks are reasonable and necessary.

47To assess if a treatment plan is reasonable and necessary, the Tribunal requires an analysis whether:

1. The treatment goals, as identified, are reasonable;
2. The treatment goals are being met to a reasonable degree; and,
3. The overall costs of achieving these goals are reasonable.

Resolved Issue

48The Order of April 6, 2020 states the claim for a medical benefit for $149.62 for physiotherapy was resolved. The applicant however at line 289 of its written submissions seeks payment of this medical benefit. As this matter was identified as resolved in the Order, this issue is resolved and not in dispute.

Evidentiary Issue – Treatment Plans (OCF-18s)

49The applicant’s initial copies of the OCF-18s in dispute other than the treatment plan for physiotherapy for $1197.50 were not readable. The Tribunal requested the applicant resubmit the OCF-18s in dispute which she did on April 11, 2022. The OCF-18s that were submitted by the applicant other than the OCF-18 for a physiatry assessment and the OCF-18 for a chronic pain assessment are unsigned. No copies of the OCF-18s were submitted by the respondent. The OCF-18s that are unsigned other than the physiatry and the chronic pain assessments which are signed are not payable under section 38 (3) of the Schedule.

50I also find the OCF-18s are not payable as they are not reasonable and necessary based on the following:

51The OCF-18 for $1197.50 was partially approved and only $598.50 remains in dispute. The applicant reported to Dr. Zanavi that despite physiotherapy treatment her pain complaints have continued and deteriorated despite treatment. On this basis I find the treatment plan proposing further physiotherapy is not reasonable and necessary.

The Treatment Plan for a Physiatry Assessment

52Three copies of this OCF18 were submitted. The first was unreadable. The second copy submitted April 11, 2022 is unsigned and a third copy submitted April 26 is signed. I find however the description of the proposed goods and services in part 12 differ in the unsigned and signed copies of the OCF-18. I find this raises questions about the OCF-18 authenticity. Further, the respondent states that the applicant has already received treatment under OHIP including by two OHIP physiatrists, Dr. Katz and Dr. Marchie rendering a third physiatry assessment unnecessary. I agree. As such, the proposed assessment is not reasonable and necessary. It also submits the physiatry assessment was not incurred which is a requirement under sections 14, 15 and 16 of the Schedule.

The Treatment Plan for a Chronic Pain Assessment

53The OCF-18 is signed. The goals of the assessment are stated as to identify barriers to recovery, treatment options and determine if the applicant is a candidate for a chronic pain program. In May 2019 Dr. Zahavi on examination, found the left elbow and knee had a normal range of motion. The lumbar and cervical areas had a restricted range of motion. He found no tenderness at the TMJ areas. His diagnosis was chronic pain as pain has persisted for 2.5 years after the accident. Dr Zahavi’s assessment is in contrast to Dr. Boucher’s assessment who in May 2019 found the treatment plan is not reasonable and necessary.⁴⁶ In his opinion the applicant had sustained soft tissue injuries as a result of the accident. He found the applicant demonstrated no significant objective evidence of ongoing accident-related injury or impairment. The injuries are consistent with a WAD II cervical myofascial strain, lumbosacral myofascial strain, left knee contusion, and a bilateral shoulder strain/sprain. He also concluded from musculoskeletal perspective, there is no compelling evidence of any concurrent or pre-accident conditions exist that have contributed to the applicant’s current condition nor are there any pre-accident conditions that hinder recovery. The treatment plan is not reasonable and necessary. I agree and prefer the report of Dr. Boucher who is more comprehensive in his analysis and findings.

The Treatment Plan for an ENT Assessment

54The unsigned OCF-18 was recommended by Altaf Khimji, physiotherapist who noted the injuries were a concussion, whiplash low back pain and an injury to the forearm. I find the injuries listed do not support the need for an OCF-18 for an ENT assessment. Moreover, Dr. Boucher was asked to assess this treatment plan in a paper review of July 9, 2019. He found the treatment plan was not reasonable and necessary.⁴⁷ In his opinion the applicant sustained soft tissue injuries from the accident and there is no significant injury that supports the assessment. The respondent also noted that the applicant has been examined by three OHIP ENTs rendering further assessments unnecessary. I agree. Further, the respondent maintains the treatment plan has not been incurred as required under section 14, 15 and 16 of the Schedule. The treatment plan is not reasonable and necessary.

The Treatment Plan for a Neurological Assessment

55The OCF-18 was also recommended by Altaf Khimji, physiotherapist who noted the injuries were a concussion, whiplash low back pain and an injury to the forearm. I find the injuries listed and the goals stated to assess ongoing headaches do not support the need for an OCF-18 for a neurological assessment. Moreover, the respondent denied the treatment plan based on Dr. Kucher’s August 14, 2019 neurological examination⁴⁸ who concluded that there were no specific neurologic diagnoses and no objective neurological impairments. Moreover, the respondent maintains the applicant has been examined by her treating neurologist, Dr. Wilson rendering the need for an additional assessment unnecessary. I agree. Furthermore, the respondent maintains the treatment plan has not been incurred as required under section 14, 15 and 16 of the Schedule. The treatment plan is not reasonable and necessary.

The Treatment Plan for a Psychological Assessment

56The respondent denied the treatment plan based on Dr. Saghatoleslami’s July 16, 2019 psychological examination.⁴⁹ The doctor noted the applicant did not endorse symptoms of Major Depressive Symptomatology, post-traumatic stress disorder such as hyper- vigilance, flashbacks or nightmares. She did not endorse any anxiety symptoms such as generalized anxiety, obsessive- compulsive disorder or psychotic symptoms, variability in her mood or substance abuse problems The doctor stated the applicant does not have any anxiety about driving but prefers not to drive during rain or snow due to sensory overstimulation. The doctor reported the applicant indicated that she does not think that she needed to see a psychologist. The doctor concluded there is no evidence of accident related psychological impairments from the accident. I agree and thus the treatment plan is not reasonable and necessary.

The Treatment Plan for a dental/TMJ Assessment

57With respect to the OCF-18, dated May 3, 2019, requesting a $2200.00 for a TMJ Assessment, Dr. Boucher concluded from the July 9, 2029 paper review he found no evidence of TMJ or pain and the TMJ assessment is not considered reasonable or necessary. The applicant was also assessed by Dr. Oksana Pikh, dentist⁵⁰ for ongoing TMJ complaints. Dr. Pikh does not state in her report that the applicant’s condition is accident related. There is no evidence to find the treatment plan is reasonable and necessary.

Claim for an Award

58The applicant seeks an award as benefits were unreasonably withheld by the respondent. This was not listed as an issue in dispute in the Order. The respondent’s submissions are silent on this issue. The only comment made by the applicant in her submissions is a statement that withholding of benefits “unduly that caused stress and vexation to the applicant”. As I find no benefits were unreasonably withheld or delayed, there is no basis for an award.

INTEREST

59The claim for interest is dismissed as there are no overdue payment of benefits.

CONCLUSION

60The applicant’s claim is dismissed. I find the applicant is not entitled to an income replacement benefit. The treatment plans are not payable and are not reasonable and necessary. The claim for interest is dismissed as there are no overdue payment of benefits. Similarly, there is no basis for an award as no benefits were unreasonably withheld or delayed.

Released: May 20, 2022

Thérèse Reilly Adjudicator

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Case Conference Report and Order (Order) of the Tribunal dated April 6, 2020 lists the issues in dispute. The Order states the claim for a medical benefit for $149.62 for physiotherapy is resolved. The applicant however in her written submissions seeks payment of this medical benefit.
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
4. 4The OCF-18s submitted by the applicant with the submissions of February 10, 2022 other than the treatment plan for $1197.50 are not legible. Pursuant to a request by the Tribunal, the applicant submitted legible copies of the OCF-18s on April 11, 2022.
5. 5The applicant claims as issue #10 in his written submissions the amount of the OCF-18 for $1197.50. However, this was partially approved and the OCF-18 for $1197.50 is listed as issue #3 ci. above.
6. 6The applicant states the OCF-18 is dated June 7, 2018 and not June 7, 2019 and was denied June 15, 2018, and not June 12, 2019, denial letter dated June 15, 2018 is referenced as exhibit 31 in the applicant’s written submissions.
7. 7The OCF-18 was denied April 15, 2019, see denial letter dated June 15, 2018 referenced as exhibit 32 in the applicant’s written submissions.
8. 8The Order stated the amount in dispute was $2200 but the OCF-18 is for $2198.79.
9. 9The OCF-18 was recommended by A. Khimji, physiotherapist and not Dr. Oksanna Pikh, dentist, as stated in the Order.
10. 10Property Damage File, respondent written submissions, tab 3.
11. 12Disability Certificate dated November 6, 2017 by Mathew Herron, physiotherapist, exhibit 14, and Disability Certificate (OCF-3) dated November 12, 2017 by RH Wilson, exhibit 15, applicant written submissions.
12. 13Dr. Abraham Crotin, otolaryngologist, letter dated October 29, 2019, Exhibit 26, applicant submissions.
13. 14Dr. Wilson’s letter of July 10, 2017, exhibit 50. Only the cover page is attached with no signature page.
14. 15Dr. Wilsons’ letter of July 27, 2017, exhibit 17.
15. 16Dr. Wilson’s letter of September 18, 2017 exhibit 18.
16. 17Ibid, exhibit 21. The letters are addressed to Dr. Arruda. Exhibit 42 is a letter dated October 23, 2017 and is a duplicate of exhibit 21.
17. 18Exhibit 24 refers to an abnormal visual test by the Eye Association of Port Perry dated April 25, 2017.
18. 19Chronic pain assessment Dr. Zahavi dated May 25, 2019, exhibit 27, page 7.
19. 20Dr. Wilson letter dated September 9, 2019, exhibit 30.
20. 21Dr. Wilson letter, exhibit 47.
21. 22Letter from Dr. Marchie, physiatrist dated December 12, 2019, exhibit 38.
22. 23Undated, TMJ Evaluation by Dr. Oksana Pikh, dentist, exhibit 25.
23. 25Clinical note of July 13, 2016 of Dr. Mumtaz, respondent written submissions, tab 14, pages 146-147.
24. 26Clinical note of July 13, 2016 of Dr. Mumtaz, respondent written submissions, tab 14, pages 146-147.
25. 27Ibid, the Lumbar Spine MRI and Cervical Spine dated August 2017, tabs 12 and 13.
26. 28Ibid, the Cervical Spine MRI, July 18, 2019, tab 13, respondent written submissions, page 145.
27. 29Ibid, the September 9, 2019 clinical note of Dr. Wilson, tab 22, pages 169-170
28. 30The October 29, 2019 note of Dr. Crotin is attached at Tab 20, page 166.
29. 31Neurological Assessment dated August 28, 2019 by Dr. Kucher, written submissions of the respondent, tab 24.
30. 32The January 7, 2019 clinical note of Dr. Gevorgyan, ENT, respondent written submissions, tab 19, page 164-165.
31. 33Functional Abilities Evaluation, by Jordan Duffy, June 29, 2017 and Job Site Assessment, by Jordan Duffy on June 29, 2017, written submissions of the respondent, tabs 6 and 7.
32. 34Functional Abilities Evaluation, by Jordan Duffy, June 29, 2017 and Job Site Assessment, by Jordan Duffy on June 29, 2017, written submissions of the respondent, tabs 6 and 7.
33. 35Physician Assessment report, Dr. Boucher dated May 31, 2017, written submissions of the respondent, tab 4.
34. 36Ibid, Physician Assessment Report by Dr. Boucher, written submissions of the respondent, tab 4.
35. 37Physician Addendum Report, Dr. Boucher, dated October 16, 2017 written submissions of the respondent, tab 8
36. 38Physician Assessment report, Dr. Boucher dated May 15, 2019, written submissions of the respondent, tab 31 and Paper review dated July 9, 2019, tab 32.
37. 39The Neurological Assessment dated June 29, 2017 by Dr. Esmail, written submissions of the respondent, tab 5.
38. 40Ibid, Neurological Assessment dated June 29, 2017 by Dr. Esmail, written submissions of the respondent tab 5.
39. 41Neurological Addendum Report, Dr. Esmail, October 16, 2017, written submissions of the respondent, tab 9.
40. 42Oxford MRI scan dated June 20, 2017, Exhibit 8, applicant documents.
41. 43Letter to Dr. Esmail from the applicant. The complaint letter is undated and referred to as exhibit 10 in the submissions.
42. 44Written submission of the respondent, paragraph 33 and Psychological Assessment dated July 30, 2019 of Dr. Marjan Saghatoleslami, respondent written submissions, tab 25, pages 184 to 209.
43. 45The 2018, 2019 and 2020 CRA Assessments, written submissions of the respondent, tabs 26, 27 and 28 and paragraphs 34 and 36.
44. 46General practitioner examination, Dr. Michael Bouchard on May 1, 2019, respondent document brief, tab 31.
45. 47General practitioner examination, Dr. Michael Bouchard, May 1, 2019, respondent document brief, tabs 32.
46. 48Neurological examination report completed by Dr. Brandon Kucher on Aug 14, 2019, tab 24.
47. 49Psychology Assessment, Dr. Saghatoleslami’s, dated July 30, 2019, tab 25.
48. 50Undated, TMJ Evaluation by Dr. Oksana Pikh, dentist, exhibit 25.
49. 11These are described in the applicant’s written submissions, pages 2-10, at lines 34 to 109 and lines 157 to 270. The description of an eye exam at line 179 is handwritten and unreadable.
50. 24Chronic pain assessment, Dr. Zahavi, dated May 25, 2019, exhibit 27.