Campbell v. Security National Insurance Company, 2022 CanLII 98045

Citation: Campbell v. Security National Insurance Company, 2022 ONLAT 20-008272/AABS

Licence Appeal Tribunal File Number: 20-008272/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:

Donald Campbell Applicant

and

Security National Insurance Company Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Camille Narine-Ramrattan, Paralegal

For the Respondent: Sirus Biniaz, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on November 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹ (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant has exhausted the $3,500.00 funding limit pursuant to the Minor Injury Guideline (“MIG”).

ISSUES

3The issues to be decided in the hearing are:

i. Is the applicant entitled to the cost of a functional abilities evaluation in the amount of $1,790.00, recommended by Midland Wellness Centre, in a treatment plan (“OCF-18”) dated January 10, 2020?

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

iii. Is the respondent entitled to costs pursuant to Rule 19 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017)(“Rules”)?

RESULT

4I find that:

i. The applicant is not entitled to the cost of a functional abilities evaluation in the amount of $1,790.00;

ii. No interest is payable;

iii. The respondent is not entitled to costs pursuant to Rule 19 of the Rules.

ANALYSIS

Procedural Issue

5The applicant has requested that I address the following dispute as part of this written decision:

i. Is the applicant entitled to $2,743.41 for psychotherapy treatment recommended by Midland Wellness Centre in a treatment plan (“OCF-18”) dated July 31, 2020?

6I decline to add the additional issue in dispute, as requested by the applicant.

7The applicant admits this issue was never added as part of the initial Application for Accident Benefits (“OCF-1”) filed July 14, 2020. The applicant submits that his legal representation changed, and this issue was omitted due to inadvertence.

8The respondent is opposed to the addition of this issue in dispute. It submits that it was only made aware of this issue when the applicant’s written hearing submissions were served. This issue was not added at the case conference which took place on April 20, 2021, nor at the Motion Hearing conducted on July 15, 2021. The respondent submits this issue was never discussed between the parties prior to its inclusion in the applicant’s written submissions dated November 12, 2021.

9The addition of this issue strikes at the very heart of procedural and substantive fairness pursuant to Rule 3.1(a) of the Rules. The respondent had no foreknowledge that this issue would be disputed. It has not had the opportunity to prepare its case, nor marshal evidence to refute the applicant’s case. The applicant had the opportunity to add this issue over a period of more than thirteen months, between the initial filing of the Application and the final production deadline for this hearing.

10Inadvertence or not, the applicant failed to add this issue in a timely manner that avoided procedural and substantive unfairness to the respondent. Forcing the respondent to address this additional issue on barely two-weeks notice is patently unfair. Thus, I am not prepared to add the OCF-18 for psychotherapy treatment as an issue in dispute for this hearing.

The Functional Abilities Evaluation

11The cost of a functionable abilities evaluation (“FAE”) in the amount of $1,790.00 is at issue. The applicant has failed to provide sufficient, objective, and compelling evidence of a functional impairment that would render such an assessment reasonable and necessary pursuant to the Schedule.

12In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.

13The OCF-18 at issue, dated January 10, 2020, was completed by Aanchal Nanchahal, physiotherapist, clearly seeks the cost of a FAE.² However, the applicant fails to make any submissions on the potential assessment, nor is a potential FAE even mentioned at all. The only reference to the FAE was made in the OCF-18 at issue, which was supplied by the respondent. Otherwise, the majority of the applicant’s submissions are based on physiotherapy and psychotherapy treatments, neither of which are at issue in this application.

14The applicant relies on two Disability Certificates (“OCF-3s”). The first dated December 5, 2017, by Adib Ashraf, chiropractor, indicates the period of disability is 9-12 weeks and identifies that the applicant suffered pre-existing back pain.³ The second OCF-3 dated May 30, 2018 by Rashmi Moraskar, physiotherapist, also indicates the period of disability is 9-12 weeks.⁴

15The clinical notes and records from the applicant’s walking in clinic detail visits between August 2017 and February 2020.⁵ During these visits, there are three sporadic reports of upper and lower back, shoulder, and neck pain related to the subject accident. However, Dr. Marutha Sathiamoorthy, family physician’s entry on February 11, 2020, indicates the applicant has a history of lower back pain related to a previous accident in 2007.⁶

16Similarly, the clinical notes and records from the applicant’s physiotherapy and chiropractic clinic chiropractic treatment make limited reference to accident-related pain⁷. The records indicate the applicant attended 57 times between December 2017 and January 2020. However, there were only four references to accident-related pain in these voluminous records, the last being on May 30, 2018, approximately six months post-accident.⁸

17The applicant relies on the Chronic Pain Assessment Report dated June 14, 2019, by Dr. Daniel Yim, general practitioner. Dr. Yim diagnosed the applicant with chronic pain disorder with associated mood disorders, as well as whiplash associated disorder type II, myofascial pain syndrome of the cervical muscles, thoracic spine and lumbar spine.⁹ He noted the applicant returned to full-time work in October 2018 as a general labourer.¹⁰ However, the applicant did report difficulty with heavy housekeeping activities, requiring assistance from the neighbour for lawncare and shoveling, and difficulty with caregiver tasks.¹¹ However, I place less weight upon this report, as it appears the evidence regarding functional abilities and activities of daily living was wholly-based on the applicant’s self-reporting and not any objective, medical testing.

18Similarly, the Psychological Report the applicant relies on by Sathis Kumar Srinivasan, registered psychotherapist, and Dr. Nina Belyakova, psychologist, suffers from the very same key weakness. While the applicant reported he was independent with personal grooming, he could not complete all household activities, and suffered an 80% reduction in recreational and social activities following the accident.¹² Again, it was not apparent, that there was any review of the applicant’s medical treatment records, psychometrics, or that the applicant’s statements regarding his functional abilities were based upon objective evidence provided to the assessors.

19In contrast, the respondent provided a Multidisciplinary Assessment Report by four separate medical professionals dated November 22, 2021. First, in the physiatry assessment, he reported to Dr. Alborz Oshidari, physiatrist that he suffered neck, shoulder, and lower back pain.¹³ However, he reported he was completely independent in all activities of daily living, with some discomfort. Following a physical examination, Dr. Oshidari diagnosed the applicant with sprain/strain of the spine and contusion of the shoulder, nothing he did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.¹⁴

20Second, Dr. Christopher Hope, neuropsychologist, provided a psychological assessment of the applicant. The applicant reported neck, shoulder and lower back pain, exacerbated by doing household chores.¹⁵ However, the applicant noted he does various household tasks (cooking, cleaning, yard maintenance) and takes his children to their activities in the evening. But otherwise, he engages in similar activities post-accident.¹⁶ Dr. Hope concluded the applicant suffered no inability to perform the essential tasks of his pre-accident employment from a psychological perspective, and noted he is likely to psychologically benefit from a return to his employment.¹⁷

21Third, Robert Campos, occupational therapist, conducted an In-Home Occupational Therapy Assessment. During his assessment, the applicant reported neck, shoulder and lower back pain.¹⁸ The applicant noted that he was independent in all aspects of his self-care, but slowly and with difficulty. Otherwise, the applicant’s girlfriend did most of the household tasks (cooking cleaning, laundry, grocery shopping) and he performed light household tasks like making the bed and washing dishes.¹⁹ Following the assessment, Mr. Campos noted the applicant was able to perform self-care activities, drive, most caregiving and leisure activities independently using energy conservation and task simplification techniques.²⁰

22Fourth, Dawn Rynberk, kinesiologist, conducted a Workwell Functional Capacity Evaluation. Following objective testing, it was her opinion that the capabilities demonstrated by the applicant were not an accurate representation of his actual capabilities.²¹ Given his self-limited effort, Ms. Rynberk was unable to comment on the applicant’s functional limitations. However, following objective testing she did note reduced active range of motion in the applicant’s neck, lower back, and shoulders.²²

23I place weight upon the four IE reports provided by the respondent. None of the four medical professionals or practitioners noted the applicant suffered a functional impairment or inability to complete self-care, household tasks, recreational activities, or employment tasks. Instead, in the FAE completed by Ms. Rynberk, the applicant specifically demonstrated self-limiting behaviors that failed to provide an accurate representation of his true physical capabilities. His failure to provide adequate effort during this assessment should not be utilized to justify a subsequent FAE.

24The OCF-3’s submitted both indicated the applicant’s period of disability was 9-12 weeks. The applicant also repeatedly reported to assessors and treatment providers that he returned to full-time employment, even as early as April 2018,²³ or approximately 14 weeks post-accident. The clinical notes and records also provide only sporadic reporting of accident-related symptoms between 2017 and 2020.

25Otherwise, the applicant has provided no rationale for why an additional functional abilities evaluation is reasonable and necessary within fourteen months of the completion of Ms. Rynberk’s FAE. Again, the applicant has provided no submissions on this point, and I cannot infer how this assessment could be reasonable and necessary from the evidence accompanying the written submissions.

26On the evidence, I find that the applicant has failed to satisfy his evidentiary onus and, therefore, he is not entitled to the proposed FAE, as it is not reasonable or necessary pursuant to the Schedule.

Interest

27Given there are no overdue payment of benefits, the applicant is not entitled to interest, pursuant to s. 51 of the Schedule.

Costs

28The respondent request for costs pursuant to Rule 19 is denied.

29Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high, and they are rarely awarded.

30The respondent provided no submissions in relation to the claim for costs, the criteria laid out in Rule 19.5, nor the quantum sought. The submissions only included a bare reference to the frivolous nature of this application.

31Given the submissions provided, I am not persuaded the threshold for costs has been met. Thus, no costs shall be awarded.

ORDER

32The application is dismissed, and I find that:

i. The applicant is not entitled to the cost of a functional abilities evaluation in the amount of $1,790.00;

ii. No interest is payable;

iii. The respondent is not entitled to costs pursuant to Rule 19 of the Rules.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Respondent’s Hearing Brief, Treatment and Assessment Plan (“OCF-18”), January 10, 2020, Tab 3.
3. 3Written Submissions of the Applicant, Disability Certificate (“OCF-3”), December 5, 2017, Tab 2, pg. 4.
4. 4Written Submissions of the Applicant, Disability Certificate (“OCF-3”), May 30, 2018, Tab 3, pg. 4.
5. 5Clinical notes and records of Appletree Medical Group from August 2017 to February 2020.
6. 6Written Submissions of the Applicant, Clinical Notes and Records of Appletree Medical Group, February 11, 2020, Tab 8.
7. 7Clinical notes and records of Midland Wellness Centre of December 2017 to January 2020.
8. 8Written Submissions of the Applicant, Clinical Notes and Records of Midland Wellness Centre, May 30, 2018, Tab 9.
9. 9Written Submissions of the Applicant, Chronic Pain Assessment Report by Dr. Daniel Yim, June 14, 2019, Tab 5, pg. 11.
10. 10Ibid. at. pg. 4.
11. 11Ibid. at pp. 4-5.
12. 12Written Submissions of the Applicant, Psychological Report by Sathis Kumar Srinivasan and Dr. Nina Belyakova, May 17, 2019, Tab 6, pg. 4.
13. 13Respondent’s Hearing Brief, Physiatry Assessment by Dr. Alborz Oshidari, November 22, 2018, Tab 7, pg. 3.
14. 14Ibid. at pg. 7.
15. 15Respondent’s Hearing Brief, Psychological Assessment by Dr. Christopher Hope, November 22, 2018, Tab 7, pp. 8-9.
16. 16Ibid. at pg. 9.
17. 17Ibid. at pg. 12.
18. 18Respondent’s Hearing Brief, Occupational Therapy In-Home Assessment by Robert Campos, November 22, 2018, Tab 7, pg. 16.
19. 19Ibid. at pp. 17-18.
20. 20Ibid. at pg. 24.
21. 21Respondent’s Hearing Brief, Workwell Functional Capacity Assessment by Dawn Rynberk, November 22, 2018, Tab 7, pg. 26.
22. 22Ibid. at pp. 33-35.
23. 23Written Submissions of the Applicant, Clinical Notes and Records of Midland Wellness Centre, April 12, 2018, Tab 9.