Keleta v. Echelon General Insurance Company, 2022 CanLII 73106

Keleta v. Echelon General Insurance Company, 2022 CanLII 73106

Licence Appeal Tribunal File Number: 20-008082/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:

Amlesom Keleta Applicant

and

Echelon General Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Jonathan M. Burton, Counsel

For the Respondent: Stacey A. Morrow, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on April 19, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE

Submissions

2The respondent raised a preliminary issue in its submissions, claiming that the applicant did not provide any evidence in support of his submissions, and therefore his application should be dismissed.

3The respondent relied on the case conference order of Vice Chair Eleanor White², which set the written hearing deadlines for this matter.

4The parties agree that when the applicant submitted his submissions, which were submitted on June 18, 2021, failed to contain the medical evidence he relied upon in his submissions.

5Based on this, the respondent, relied on the decision of Khan v. Aviva General Insurance³, where the applicant failed to file copies of the disputed treatment and assessment plans into evidence. As the applicant was unable to direct the Tribunal to evidence that directly addressed the proposed treatment, the Tribunal found that the applicant had not provided sufficient evidence of on-going pain or a functional limitation.

6Based on this, the respondent requested that the Tribunal dismiss the applicant’s claim in its totality.

7The applicant does not refute the omissions of his medical evidence with his submissions, but argued this was caused by an administrative error. The applicant further submitted that once this error was noted, the applicant served his medical evidence to the respondent and the Tribunal on July 14, 2021, prior to the deadline for his reply submissions.

8The applicant stated that the failure to accept the applicant’s document brief containing his medical evidence would greatly prejudice him, as he would not fully be able to exercise his rights to benefits under the Schedule.

9The applicant argued that the evidence complied with the Schedule, pursuant to the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure - October 2, 2017 (”Rules”). The applicant submitted that the respondent received physical copies of the evidence relied upon by the applicant more than 10 days before the hearing, and therefore, the respondent complied with Rule 9.2.

10The applicant also relied on Rule 9.4, which the applicant submitted also permitted the Tribunal to consent to the evidence being accepted.

11Finally, the applicant submitted that the respondent had consented in writing to the late electronic submissions of the applicant’s evidence, so long as the respondent was given an opportunity to file a sur-reply to the applicant’s reply submissions, which the applicant agreed to. As the applicant stated that he has taken reasonable steps to address and minimize the prejudice caused by his error, his evidence ought to be considered and admitted.

12The respondent chose not to make sur-reply submissions to this regard.

Analysis

13After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant is entitled to rely on the evidence which was submitted late.

14Based on the submissions presented by the parties, it is clear that the applicant failed to submit his evidence with his submissions.

15However, given the fact that the respondent did not refute the applicant’s submissions regarding the administrative error, I accepted that the omission of evidence was an error, rather than a choice on the part of the applicant.

16Furthermore, I accepted the applicant’s submissions that the documents he wished to rely on were physically submitted to the respondent in advance of the hearing.

17As the applicant has taken meaningful and productive steps to minimize the prejudice caused to the respondent due to his error, I will use Rule 9.4 to provide the Tribunal’s consent to allow the documents into evidence.

18In terms of the respondent’s submissions regarding Khan v. Aviva General Insurance⁴, I find that it would be premature to dismiss the applicant’s substantive issues in dispute prior to at least reviewing the evidence, and the parties’ submissions.

SUBSTANTIVE ISSUES

19The substantive issues for the Tribunal to decide are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 20, 2018 to date and ongoing, with entitlement limited to 2 years post-accident, and ended on April 19, 2020?

ii. Is the applicant entitled to a medical benefit in the amount of $2,925.00 for physiotherapy, recommended by Scarborough Physiotherapy and Rehabilitation in a treatment plan (OCF-18) submitted on June 6, 2019 and denied on June 12, 2019?

iii. Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a Chronic Pain Assessment, recommended by Scarborough Physiotherapy and Rehabilitation in a treatment plan submitted August 12, 2019 and denied on October 3, 2019?

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

APPLICABLE LAW

20Section 3(7) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident

21Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit 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 one hundred and four weeks after the accident and does not qualify for an income replacement benefit (”IRB”).

22Sections 14 and 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

23Section 25 of the Schedule states that insurers shall pay the reasonable costs of examinations/assessments on behalf of an insured person and that the maximum rate for said assessment shall be $2,000.00 plus tax.

24Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

25Section 10 of R.R.O. 1990, Reg. 664: Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in additional to awarding the benefits and interest which the insured person is entitled to, may award a lump sum of up to fifty percent of the amount to which the person was entitled to at the time of the award, with interest, on all amounts owing to the insured.

NON-EARNER BENEFIT (‘NEB’)

Submissions

26The applicant submitted he suffers a complete inability as a result of the accident in accordance with Heath v. Economical⁵.

27The applicant relied on the disability certificate⁶ (“OCF-3”) of Dr. Andrew Woo, chiropractor. Dr. Woo found that the applicant suffered a complete inability to carry on a normal life and suffered a substantial inability to perform him housekeeping and home maintenance work as a result of his accident-related injuries, with an estimated duration of nine to twelve weeks.

28Dr. Woo noted the following injury and sequalae information in the OCF-3: sprain and strain of the cervical spine, thoracic spine, and lumbar spine, shoulder joint, rotavator cuff capsule and other unspecified parts of the knee, post-traumatic headaches, concussion, nausea alone, vertigo, other amnesia, other and unspecified symptoms/signs involving cognitive function and awareness – decreased concentration, and impingement syndrome of shoulder.

29The applicant also relied on the Initial Psychological Report⁷ of Dr. Grace Gronkowska, psychologist. Dr. Gronkowska assessed the applicant’s psychological state and found that the applicant suffered from Major Depressive Disorder - severe, Post-Traumatic Stress Disorder, and Somatic Symptom Disorder with predominant pain. The doctor found these diagnoses sufficient to determine that the applicant has significant psychological impairments as a result of the accident. Dr. Gronkowska recommends that the applicant receive an IRB, as his mental health issues are severe enough to prevent the applicant from working.

30The applicant submitted that as a result of the accident, he suffered from chronic pain syndrome. The applicant relied on the chronic pain report⁸ of Dr. Kevin Smith, anaesthesiologist and chronic pain specialist. Dr. Smith found that the applicant met five of the six American Medical Association Guides⁹ (“AMA Guides”) provide that chronic pain syndrome will consist of three or more of the following characteristics:

• Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

• Excessive dependence on health care providers, spouse or family;

• Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

• Withdrawal from social milieu, including work, recreation or other social contacts;

• Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;

• Development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression or nonorganic illness behaviours.

31Dr. Smith found that the applicant met five of the six elements, excluding over-use of prescriptions. Dr. Smith opined that the applicant was having issues with: prolonged walking, sitting, standing, repetitive bending/pushing/pulling, heavy lifting, higher axial impact physical activities and sustained/full extension, lateral flexion or neck rotation and experienced pain with these functions.

32The applicant argued that the combination of his physical and psychological impairments have stopped him from being able to engage in his activities of daily living (“ADLs”) and therefore, he has met the NEB test. This opinion was shared by Dr. Smith.

33The respondent denied that the applicant was entitled to a NEB on the basis of not suffering a complete inability. The respondent submitted that based on the principles of Heath v. Economical¹⁰, the applicant had failed to provide the Tribunal with a full comparison of his pre and post accident abilities and activities, and therefore he has not met his burden.

34The respondent submitted that in contrast, the section 44 assessment¹¹ of the applicant conducted by Nansia Lee, occupational therapist, was able to provide such. Ms. Lee found that the applicant did not suffer a complete inability to carry on a normal life, as he was able to resume some leisure activities, and reported independence in most of his ADLs.

35The respondent submitted that as this evidence does not support that the applicant is incapable of performing at least 50% of his pre-accident activities, as seen in S.V. v. Aviva Insurance Canada.¹²

36The respondent also argued that given the applicant’s well documented history of heart issues¹³ and the applicant’s failure to address the “but for” test, as seen in P.W. v. Aviva Insurance Canada¹⁴, the applicant has failed to demonstrate that his impairments would not have resulted but for the accident.

37The applicant argued that P.W. v. Aviva Insurance Canada¹⁵ did contain the principles of the “but for” test found in Sabadash v State Farm et al.¹⁶ However, the respondent failed to acknowledge that Sabadash states at paragraph 39 that the causation test does not require the accident to be the sole cause of an applicant’s impairments.

38The applicant argued that even if the Tribunal accepts that the applicant’s pre-existing condition has contributed to or impeded his recovery from his accident-related impairments, as the applicant has suffered accident-related impairments, he has fulfilled the “but for” test.

Analysis

39After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the NEB.

40This is in part because the applicant has failed to provide the Tribunal with a comparison of the applicant’s activities before and after the accident, examined over a reasonable amount of time, pursuant to Heath¹⁷ and section 3(7) of the Schedule. This is required to compare the applicant’s pre-accident life activities to those post-accident.

41Furthermore, I agreed with the respondent that the decision of SV v. Aviva Insurance Canada was applicable as both the applicant in SV and in the subject matter alleged having issues with ADLs due to pain. In the subject matter, I was not presented with direct evidence that the applicant was not able to engage with less than less than 50% of his ADLs as the applicant did not provide this evidence.

42As the applicant has failed to meet his onus, I have determined that the applicant is not entitled to the NEB in dispute, I do not need to address the issue of causation.

$2,925.00 FOR PHYSIOTHERAPY

Submissions

43The applicant submitted that he is entitled to the disputed treatment plan¹⁸ (‘OCF-18’) recommending physical therapy in the amount of $2,925.00, authored by Omar Rasheed, physiotherapist. The applicant argued that the OCF-18 consisted of the following:

• $1,200.00 for 12 physical rehabilitation sessions;

• $500.00 for 10 sessions of therapy;

• $200.00 for supporting documentation;

• $960.00 for 12 massage therapy sessions, and

• $65.00 for taxes.

44The applicant submitted that the OCF-18 stated that the applicant reported “decreased tolerance to prolonged postures, quickly fatiguing, decreased ability to complete heavier housework, difficulty bending repetitively, difficulty lifting heavy objects, sleep is shortened and disturbed, social withdrawal, and stress over financial situation post-MVA”.

45However, as the applicant did not include a copy of the OCF-18 in question, I was unable to verify the goals and breakdown of the costs.

46The applicant also relied upon the clinical notes and records from his family doctor, Dr. Ramesh Asirwatham, which recommended physiotherapy and pain treatment from the date of the accident until January 2019.¹⁹

47Dr. Asirwatham noted the applicant’s complaints of neck, leg and knee pain after the accident,²⁰ and diagnosed the applicant with whiplash and back pain, with suspected right sciatica and knee strain.

48Dr. Asirwatham noted that the applicant continued noting his headaches, neck, lower back and right knee pain since the accident and again suggested the applicant continue with physical therapy²¹. Dr. Asirwatham noted that the applicant’s knee²² and general pain were becoming chronic.²³

49Dr. Asirwatham eventually referred the applicant to a pain clinic,²⁴ where the applicant was seen by Dr. Smith. As mentioned above, Dr. Smith diagnosed the applicant with chronic pain syndrome. Dr. Smith recommended the following treatment for such: neurology assessment, neuropsychology assessment, psychological treatment, medication, swimming and a supervised exercise program, a referral to an interventional pain clinic, periodic physical therapy, a referral to a formal self-management program for chronic pain, and a referral to a multidisciplinary pain management program.

50The applicant also relied on the Initial Psychological Assessment²⁵ of Dr. Gronkowska. Dr. Gronkowska assessed the applicant’s psychological state and found that the applicant suffered from Somatic Symptom Disorder with predominant pain and recommended the applicant receive education regarding his pain, a graded increase in his activity levels, insight building and behavioral regulation, pacing skills training and corrections in irrational thinking.

51The applicant also relied on the clinical notes and records of Scarborough Physiotherapist, which noted the applicant’s pain complaints. The applicant reported pain that the pain the applicant experienced was worse in his right knee and lower leg, and that he suffered from headaches, as well as back and neck pain, which caused sleep issues.²⁶

52The applicant concluded his submissions regarding the OCF-18 by arguing that based on the assessments, reports and clinical notes and records from the applicant’s health professionals, the applicant suffers from chronic pain as a result of the accident and requires on-going physical therapy and rehabilitation.

53The respondent disagreed that the OCF-18 was reasonable and necessary.

54The respondent relied on a section 44 assessment²⁷ conducted by Dr. Gilbert Yee, orthopaedic surgeon. Dr. Yee opined that the disputed OCF-18 is not reasonable and necessary, as the applicant has achieved maximal medical recovery.²⁸

55The respondent also relied on a section 44 addendum report²⁹ of Dr. Richard Kaminker, orthopaedic surgeon. Dr. Kaminker agreed with Dr. Yee and found that the disputed OF-18 was not reasonable and necessary, as the applicant had reached maximal medical recovery.³⁰

56Instead, both doctors determined that the applicant’s accident-related injuries were soft-tissue and should be considered resolved.

Analysis

57After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the disputed OCF-18 is not reasonable and necessary, as the applicant has failed to meet his evidentiary burden.

58As mentioned above, the applicant did not include a copy of the disputed OCF-18 in his evidence. Nonetheless, after reviewing the evidence submitted by the applicant, I accepted that Dr. Asirwatham does recommend the applicant attend physical therapy³¹ in his clinical notes and records.

59However, upon further review, Dr. Asirwatham does not specify the frequency of such, nor was I presented with clinical notes and records contemporaneous to the disputed OCF-18. Without this information, I was not persuaded that the treatment was reasonable and necessary.

60This comment applies equally to the evidence from Dr. Smith’s report, which recommended periodic physical therapy. Dr. Smith does not comment on the frequency of this treatment but recommended that it be offered to the applicant for symptom maintenance and treatment of flare-up.

61Furthermore, I was more convinced by the evidence presented by Dr. Yee and Dr. Kaminker, which was not refuted by the applicant. The applicant also did not present any evidence with regards to Dr. Yee and Dr. Kaminker’s findings that he maximum medical recovery, nor any explanation as to why such a large discrepancy of findings existed. Therefore, the applicant is not entitled to the OCF-18 in dispute.

$2,200.00 FOR A CHRONIC PAIN ASSESSMENT

Submissions

62The applicant also sought funding for a chronic pain assessment in the amount of $2,200.00, submitted via OCF-18.³² Like the previous OCF-18 in dispute, the applicant did not include a copy of the disputed OCF-18 into evidence.

63The applicant argued that as discussed above, the applicant has been diagnosed as having chronic pain by his family doctor, which resulted in the applicant being referred to a chronic pain clinic and eventually being seen by Dr. Smith.

64Furthermore, the applicant argued that as Dr. Smith has conducted the assessment, the examination has been incurred and was required, as the applicant was ultimately diagnosed with chronic pain syndrome, demonstrating the reasonableness of the assessment and its necessity for the applicant.

65Finally, the applicant submitted that the cost of this assessment is reasonable, as it falls within the $2,000.00 limit of section 25 of the Schedule, plus the $200.00 for the preparation of the report.

66The respondent disagreed that the chronic pain assessment was reasonable and necessary. The respondent submitted that in accordance with Nirmal v. Certas Direct Insurance Company³³, the fact that the applicant has incurred the assessment is not a factor when considering if an OCF-18 is reasonable and necessary.

67The respondent also argued that as the applicant has not addressed the AMA Guides in his submissions, he has failed to meet his evidentiary burden.

68In the alternative, the respondent relied on the section 44 paper review³⁴ of Dr. Kaminker. Dr. Kaminker found no signs of on-going trauma related impairment in the applicant, and again found that the applicant has reached maximum medical recovery. Dr. Kaminker found the assessment was not reasonable and necessary.

Analysis

69After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the disputed OCF-18 for a chronic pain assessment is reasonable and necessary.

70I found myself persuaded by Dr. Smith’s medical evidence regarding the applicant’s diagnosis of chronic pain syndrome. Dr. Smith’s report provides the basis, methodology and findings of his physical and psychological assessments of the applicant.

71I appreciated that the respondent countered this finding via evidence from Dr. Kaminker. However, I found Dr. Kaminker’s evidence less than persuasive when addressing the reasonableness and necessity of a chronic pain assessment, as the doctor’s reports did not specifically address the psychological component of chronic pain syndrome nor address any components of chronic pain. I found myself wondering why the respondent would ask an orthopaedic surgeon to review such requests, as chronic pain assessment is often outside their scope of practice.

72Therefore, the applicant is entitled to the chronic pain assessment.

INTEREST

Submissions

73The applicant submitted that he was entitled to interest on all unpaid benefits in dispute based on section 51 of the Schedule. The respondent disagreed that any benefits were owing.

74As I have found that the applicant is entitled to the chronic pain assessment, he is also entitled to interest on such.

CONCLUSION AND ORDER

75The applicant is not entitled to the non-earner benefit.

76The applicant is not entitled to the physiotherapy treatment plan.

77The applicant is entitled to $2,200.00 for the chronic pain assessment.

78The applicant is entitled to interest on the chronic pain assessment.

Footnotes

1. 1O. Reg. 34/10.
2. 2Dated December 2, 2020.
3. 3Khan v. Aviva General Insurance, 2021 CanLII 30393 at para. 11 and 16.
4. 4Khan v. Aviva General Insurance, 2021 CanLII 30393 at para. 11 and 16.
5. 5Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
6. 6Dated May 3, 2018.
7. 7Dated October 15, 2018.
8. 8Dated February 12, 2021.
9. 9American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.
10. 10Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
11. 11Dated August 7, 2018.
12. 12S.V. v Aviva Insurance Canada, 2020 CanLII 40332 (ON LAT) at paras 34-37.
13. 13As noted in the clinical notes and records of Dr. Asirwatham.
14. 14P.W. v. Aviva Insurance Canada, 2021 CanLII 30758.
15. 15Ibid.
16. 16Sabadash v State Farm et al, 2019 ONSC 1121
17. 17Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
18. 18Dated June 6, 2019, based on the section 44 assessment of Dr. Richard Kaminker, dated August 6, 2019.
19. 19Based on Dr. Asirwatham’s clinic notes and records of May 7, 9, June 15, June 20, and August 31, 2018, and on January 25, 2019.
20. 20On May 7, 2019.
21. 21Based on Dr. Asirwatham’s clinical notes and records of July 27, 2019.
22. 22Based on Dr. Asirwatham’s clinical notes and records of August 13, 2019.
23. 23Based on Dr. Asirwatham’s clinical notes and records of August 19, 2019.
24. 24Based on Dr. Asirwatham’s clinical notes and records of October 18, 2019.
25. 25Dated October 15, 2019.
26. 26Based on the clinical notes and records of Scarborough Physiotherapy dated June 6, 2019.
27. 27Dated July 22, 2019.
28. 28Based on the Independent Orthopedic Examination of Dr. Kaminker, dated July 22, 2019.
29. 29Dated August 6, 2019.
30. 30Based on the Addendum to Independent Orthopaedic Examination of Dr. Kaminker dated August 6, 2019.
31. 31On May 7, 9, June 15, June 20, and August 31, 2018, and on January 25, 2019.
32. 32Dated August 12, 2019.
33. 33Nirmal v Certas Direct Insurance Company, 2020 CanLII 94806.
34. 34Dated September 20, 2019.