Citation: Le v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-011603/AABS

Licence Appeal Tribunal File Number: 20-011603/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:

Ky Tam Le

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Ayesha Mehreen, Counsel

HEARD:

By Way of Written Submissions

1Ky Tam Le (“the applicant”), was involved in an automobile accident on November 25, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after his claims for benefits were denied by Certas Home and Auto Insurance Company (“the respondent”).

2The applicant is currently 53 years old and at the time of the accident was employed at Toronto Pallet & Skid as a skilled worker. The applicant submits that he is unable to work as a result of the accident. The respondent submits that it paid the applicant $19,485.71 in income replacement benefits (“IRB”) for the time period of December 3, 2018 to October 24, 2019.

3An award was not listed as an issue in dispute in the Case Conference Order, however the applicant made several references to the respondent having a duty to act in good faith. As such, I have added an award as an issue in dispute for the purposes of this hearing.

ISSUES

4The following are the issues to be determined for the purposes of this hearing:

i. Is the applicant entitled to IRB in the amount of $400.00 per week from October 25, 2019 to date and ongoing?

ii. Is the applicant entitled to $2,093.72 for chiropractic treatment proposed by Easy Health Centre in a treatment plan (“OCF-18”) dated June 5, 2019?

iii. Is the applicant entitled to $280.00 for psychological treatment submitted by Somatic Assessment and Treatment Clinic, in an OCF-18, dated June 18, 2020?

iv. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for an occupational therapy in-home assessment, submitted by Somatic Assessment and Treatment Clinic, in an OCF-18, dated June 11, 2020?

v. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a psychological assessment, submitted by Somatic Assessment and Treatment Clinic, in an OCF-18, dated April 23, 2019?

vi. Is the applicant entitled to the following expenses for medication submitted through an OCF-6?

a. $50.00 submitted on March 20, 2019;

b. $14.10 submitted on March 20, 2019;

c. $7.18 submitted on July 30, 2019; and

d. $20.69 submitted on August 30, 2019?

vii. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

5The applicant withdrew issues (iii) to (vi)(c) in his submissions. As such, I have only made a finding with respect to issues: (i), (ii), (vi)(d), (vii), and (viii).

RESULT

6I find that the applicant is not entitled to IRB from October 25, 2019 to date and ongoing.

7The applicant has failed to demonstrate on a balance of probabilities that the OCF-18 in the amount of $2,093.72 is reasonable or necessary. Further, the applicant has failed to demonstrate that the OCF-6 in the amount of $20.69 is reasonable and necessary.

8The applicant is not entitled to an award and no interest is payable.

ANALYSIS

Entitlement to IRBs within 104 weeks of the accident (October 25, 2019 to November 25, 2020)

9The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks after the accident. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he is substantially unable to perform his pre-accident duties as a skilled worker working with a pallet company.

10The respondent denied the applicant’s IRB claim from October 25, 2019 to date and ongoing. The Case Conference Order states that the disputed period for IRB starts on October 11, 2019, however based on the respondent’s submissions, the date for the denial of the pre-104 IRB starts on October 25, 2019. As such, I will be using the date of October 25, 2019, for the denial of the pre-104 IRB for the purposes of this hearing.

11For the reasons that will follow below, the applicant has failed to discharge his evidentiary onus to demonstrate that he is entitled to pre-104 IRB from October 25, 2019, to November 25, 2020.

Essential tasks of the applicant’s pre-accident employment

12The applicant submits that prior to this accident, he worked as a skilled worker at Toronto Pallet & Skid. The applicant provides vague submissions with respect to what his essential tasks were prior to this accident but submits that he repaired broken pallets. Further, the applicant submits the essential tasks of his pre-accident employment require prolonged standing, upper body and limb co-ordination, heavy lifting as well as concentration and focus. The applicant failed to provide an employment file from Toronto Pallet & Skid which would have assisted the Tribunal to determine the essential tasks of his pre-accident employment. The Record of Employment² and Employer’s Confirmation Form (“OCF-2”)³ did not list what the essential tasks of the applicant were prior to this accident. The applicant also failed to address how frequently he had to complete: prolonged standing, upper and limb co-ordination, heavy lifting, concentration, and focus, and to what extent he was unable to perform this.

13The respondent submits that the evidentiary burden is on the applicant to prove entitlement to IRB, not on the insurer to disprove entitlement.

Substantial inability to perform the essential tasks of his pre-accident employment

14The applicant has failed to meet his evidentiary onus to demonstrate that he is entitled to pre-104 IRB from October 25, 2019, to November 25, 2020, for the reasons outlined below.

15The applicant has failed to refer to any medical evidence from a treating practitioner that supports he is substantially unable to perform his work duties as a result of the injuries sustained from the accident from October 25, 2019, to November 25, 2020.

16The records from Dr. Minh Quan, the applicant’s family physician was transcribed from January 2017 to April 1, 2019, only. The applicant failed to have the records from April 2019 to January 2021 transcribed for Tribunal review. The records of Dr. Quan from April 2019 to January 2021 are unhelpful as they are completely illegible and as such, the Tribunal was unable to determine the content of the records. The applicant’s submissions provided a description of the entries from April 2019 to January 2021, which I was unable to confirm were accurate, however as the respondent did not dispute the description of these entries, I have relied on the descriptions provided in the applicant’s submissions. For the time period of October 25, 2019, to November 25, 2020, the applicant did not refer to a single entry that supports that Dr. Quan opined that the applicant was medically impaired from performing the essential tasks of a skilled worker in the pallet industry. While I acknowledge the applicant reported pain and psychological complaints to Dr. Quan, this is not the test for IRB. The applicant has failed to demonstrate that as a result of his pain or psychological impairments, he cannot substantially perform the essential tasks of a skilled worker in the pallet industry.

17The Disability Certificate (“OCF-3”) submitted by Dr. Gregory Hutchison, chiropractor, on November 28, 2018, is outdated and only supported that the applicant met the test for IRB for 9-12 weeks.⁴ Moreover, Dr. Hutchison clearly opined that a re-assessment would be required in 12 weeks after the submission of the OCF-3.⁵ The applicant has failed to address why an updated OCF-3 was completed after 12 weeks as recommended by Dr. Hutchison.

18The Medical Questionnaire completed by Dr. Quan on March 14, 2019 did not state that the applicant would indefinitely be substantially unable to perform the essential tasks of his employment.⁶ Dr. Quan opined that the applicant’s headaches, neck pain, shoulder pain, and difficulty with sleep were affecting work and the prognosis was unknown.⁷ Dr. Quan did not address what pre-accident work tasks the applicant was unable to do as a result of the accident or how long his injuries would affect his work.⁸

19The applicant has failed to refer to any medical evidence from his treating practitioners that support that he cannot perform prolonged standing, upper body and limb co-ordination, heavy lifting, as well as concentration and focus as a result of the accident. The applicant did not refer to a single entry from Dr. Quan that supported this submission from October 25, 2019 to November 25, 2020. The OCF-18 completed by Dr. Hutchison on June 5, 2019 wherein he opined that the applicant was impaired from performing gripping, lifting, bending and certain flexion and adduction/abduction which are the essential task of a skilled labourer is unpersuasive.⁹ Firstly, the essential tasks described by Dr. Hutchison are not the essential tasks as referenced in the applicant’s submissions with the exception of lifting. Secondly, the applicant has also failed to refer to any medical evidence contemporaneous with the date of the OCF-18 that support that he is substantially unable to perform the essential tasks of his employment. It is well settled that an OCF-18 alone is not medical evidence.

20The Psychological Assessment completed by Ms. Mandy Fang, registered psychotherapist and Dr. Sharleen McDowall, psychologist, dated June 15, 2020 does not address the pre-104 or post-104 IRB test. Ms. Fang and Dr. McDowall noted that the applicant was a maintenance worker for Toronto Parks at the time of this accident which is inconsistent with the evidence and the applicant’s own submissions. While I acknowledge the applicant, complained of neck pain, shoulder pain, chest pain, as well as numbness in his fourth and fifth fingers and that this prevented him from sitting, standing, and walking for a prolonged period of time.¹⁰ The applicant has failed to refer to any entry from Dr. Quan that supports his self-reporting functional limitations. Further, the duties referenced by Ms. Fang and Dr. McDowall are with respect to being a maintenance worker, meanwhile the applicant submitted that he was a skilled worker working with a pallet company prior to this accident. As such, the report completed by Ms. Fang and Dr. McDowall addressed the wrong employment and do not address the essential tasks of a skilled worker working with a pallet company. Moreover, Ms. Fang and Dr. McDowall did not opine that the applicant was substantially unable to perform the essential tasks of his employment, they merely opined that he has an inability to function at his full capacity and is unable to return to the level of functioning he had prior to the accident.¹¹

21I prefer the s.44 reports completed by Dr. Amena Syed, neuropsychologist, and Mr. Rodney Pritchett, occupational therapist. Dr. Syed completed a Psychology Assessment Report, dated September 25, 2019. Dr. Syed reviewed the clinical notes and records of Dr. Quan, dated 2017-2019.¹² In comparison to Ms. Fang and Dr. McDowall’s report, Dr. Syed noted the correct employment information for the applicant and conducted the following validity testing: Rey 15 Item Test and Structured Inventory of Malingered Symptomatology (“SIMS”).¹³ The results of the Rey 15 Item Test revealed that the applicant had impaired engagement with testing and the SIMS Test revealed impaired ratings.¹⁴ As a result, Dr. Syed opined that the findings suggested that the applicant may have not answered the questions in a forthright manner and there are suggestions that he attempted to portray himself in a negative or pathological manner in some areas.¹⁵ Furthermore, Dr. Syed opined that the applicant presented with certain patterns or combination of features that are unusual or atypical in clinical populations but common among individuals feigning a mental disorder.¹⁶ As a result, Dr. Syed opined that there was no objective evidence to support the self-reporting of the applicant’s psychological impairments and as a result the applicant did not suffer from a substantial inability to perform the essential tasks of his employment.¹⁷

22Mr. Pritchett, completed a Functional Capacity Evaluation Report, dated September 25, 2019. Mr. Pritchett noted that the applicant self-terminated many of the functional tasks without completing maximal effort.¹⁸ Mr. Pritchett advised the applicant that there were no changes to indicate that he reached biomechanical or physiological maximum and that he was safe to continue.¹⁹ As such, Mr. Pritchett opined that the applicant may be more physically capable than was demonstrated in the assessment.²⁰ Mr. Pritchett noted that he was provided with minimal information with respect to a description of the applicant’s pre-accident employment.²¹ As such, Mr. Pritchett compared the applicant’s job description to that of a material handler, the main duties of which include: load, unload and move products and materials by hand or using basic material handing equipment; move household appliances and furniture onto and off moving trucks or vans; and perform other material handling activities such as counting, weighting, sorting, packing and unpacking.²² The occupation of a material handler is rated as heavy and requires multiple limb coordination, sitting, standing, walking, bending, stooping, kneeling and crouching.²³ Mr. Pritchett noted that he was unable to determine whether the applicant can engage in work as a material handler due to his self-limited effort.²⁴

23On the medical evidence before the Tribunal, I find no reason to interfere with Certas’s determination to stop the IRBs as there is limited medical evidence beyond the applicant’s self-reporting indicating an occupational disability. I find that the applicant has failed to meet his onus to prove that he is entitled to IRB from October 25, 2019 to November 25, 2020, because there is no medical indication that he cannot perform the essential tasks of his pre-accident employment.

Entitlement to IRBs beyond 104 weeks of the accident (November 26, 2020 to date and ongoing)

24To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.

25The applicant submits that his past work history only qualifies him for manual labour work. He furthers submits that as a result of physical and psychological injuries, he is unable to maintain employment in a competitive workforce and he is unable to engage in any pre-accident employment for which he is suited by education, training or experience. The applicant failed to refer to any medical evidence that supports these assertions. The applicant also did not refer to any expert reports that support that he meets the stringent test for post-104 IRB. As such, I find that the applicant has failed to discharge his evidentiary onus to demonstrate that he is entitled to post 104-IRB from November 26, 2020, to date and ongoing.

OCF-18 for Chiropractic Treatment

26The applicant has failed to meet his evidentiary onus to demonstrate that the OCF-18 for chiropractic treatment is reasonable and necessary.

27To receive medical benefits under s.15 and 16 of the Schedule, the applicant bears the evidentiary burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

28The applicant submits that the OCF-18 is reasonable and necessary as it specifically addressed his ongoing physical impairments from this accident. The respondent submits that the applicant has failed to demonstrate that chiropractic treatment is reasonable and necessary.

29The OCF-18 in dispute was submitted by Dr. Hutchison dated June 5, 2019, and the goals were: pain reduction, increased strength, increased range of motion, for the applicant to return to activities of normal living and return to his pre-accident work activities.²⁵

30While I acknowledge that the applicant reports ongoing pain and psychological symptomatology, he has failed to show the OCF-18 is reasonable and necessary to address his pain complaints. The transcribed records of Dr. Quan from January 2017 to April 2019 do not demonstrate that the applicant would receive pain relief from chiropractic treatment. Also, the applicant did not describe a single entry from the illegible records of Dr. Quan that support that the proposed treatment will provide pain relief to the applicant. Further, the applicant failed to refer to a single entry wherein Dr. Quan recommended chiropractic treatment. I place significant weight on a lack of referral for chiropractic treatment from Dr. Quan, as he is the applicant’s treating family physician and as such would have privy knowledge of what treatment could provide pain relief to the applicant. In fact, the Medical Questionnaire completed by Dr. Quan was completely silent with respect to whether chiropractic treatment was beneficial for the applicant’s accident-related pain relief.²⁶ Also, the progress report completed by Dr. Hutchinson wherein he noted that the applicant was receiving reasonable results with treatment²⁷ is unpersuasive as once again, the applicant has failed to refer to a single entry of Dr. Quan which supports this conclusion.

ocf-6 for Mylan-Lansoprazole

31The applicant has failed to demonstrate on a balance of probabilities that the prescription for Mylan-Lansoprazole is as a result of this accident.

32The applicant has the evidentiary onus to demonstrate that the OCF-6 was reasonable and necessary as a result of the accident.

33The applicant submits that Mylan-Lansoprazole was prescribed by Dr. Quan for heartburn, caused by consumption of pain medication for his accident-related impairments. To further support this position, the applicant relies on his self-reporting that he told s.44 assessor, Dr. Ko that he required medication for heartburn ²⁸ and that he told Dr. Syed that he only started consuming this medicine following the accident.²⁹ This is unpersuasive as neither Dr. Ko nor Dr. Syed concluded that the applicant was consuming Mylan-Lansoprazole for heartburn caused by this accident.

34The respondent submits that the applicant had pre-existing stomach issues and that he had a pre-existing accident wherein he was consuming pain relief medication. On May 18, 2018, Dr. Quan noted that the applicant had been involved in a car accident on May 11, 2018 and had back pain.³⁰ As a result, Tylenol 500 mg was prescribed.³¹

35On August 30, 2019, the applicant submitted an OCF-6 for Mylan-Lansoprazole 30 mg in the amount of $20.69.³²

36The transcribed records of Dr. Quan from January 2017 to April 2019 do not support that the applicant had heartburn following this accident from pain medicine. As noted above, the records of Dr. Quan from April 2019 to January 2021 are completely illegible and as a result, I have relied on the description for those entries contained in the applicant’s submissions. The applicant’s submissions failed to refer to a single entry from Dr. Quan’s records that support his assertion.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

37Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

38It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order to meet the threshold for an award, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The evidentiary onus remains on the applicant to demonstrate he qualifies for an award.

39As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

40Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

Conclusion and ORDER

41For the reasons outlined above, I find that:

a. The applicant is not entitled to pre-104 IRB from October 25, 2019, to November 25, 2020;

b. The applicant is not entitled to post-104 IRB from November 26, 2020, to date and ongoing;

c. The applicant is not entitled to an OCF-18 in the amount of $2,093.72 for chiropractic treatment;

d. The applicant is not entitled to an OCF-6 in the amount of $20.69 for Mylan-Lansoprazole;

e. The applicant is not entitled to an award pursuant to Regulation 664;

f. The applicant is not entitled to interest; and

g. The application shall be dismissed by the Tribunal.

Released: July 21, 2022

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