Licence Appeal Tribunal File Number: 21-001231/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:
Antonio Sacco
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Sean Chambers, Counsel
HEARD: In Writing
By way of written submissions
OVERVIEW
1Antonio Sacco, the applicant, was involved in an automobile accident on December 31, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit of $400.00 per week from December 31, 2018 to date and ongoing?
ii. Is the applicant entitled to $1,531.09 for physiotherapy services, proposed by Physiomed Nobleton in a treatment plan/OCF-18 (“plan”) submitted June 5, 2019?
iii. Is the applicant entitled to $3,539.77 for chiropractic services, proposed by Physiomed Nobleton in a treatment plan/OCF-18 (“plan”) submitted November 6, 2019?
iv. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) submitted December 18, 2020?
v. Is the applicant entitled to $2,493.75 for physiotherapy services, proposed by Bolton Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) submitted May 4, 2021?
vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In submissions, the applicant withdrew issues three and six as listed in the Case Conference Report and Order.
RESULT
4This application is dismissed.
ANALYSIS
Income Replacement Benefit (IRB)
5The applicant has not established, on a balance of probabilities, that he is entitled to an IRB, nor a post-104-week IRB.
6Under s. 5(1) of the Schedule, a person must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment.
7To establish entitlement to an IRB the applicant must identify the essential tasks of their employment, the tasks they are unable to perform, and the extent they are unable to perform them. The burden of proof lies with the applicant to show, on a balance of probabilities, that he meets the test.
8Prior to the accident the applicant was employed as a sprinkler fitter. He also worked part-time at the Liquor Control Board of Ontario (LCBO) in customer service. The applicant submits that he is unable to perform the tasks of either position because of the physical and psychological injuries he sustained in the accident.
9The respondent submits that insurer examinations (IEs) establish that the applicant is able to perform the duties of both positions and that he is not entitled to an IRB.
10I find that the applicant is not entitled to an IRB under 5(1) of the Schedule.
11The respondent stopped paying the IRB as of September 30, 2019. It determined that the applicant was no longer eligible to receive this benefit based on the results of a Multidisciplinary Assessment Report (MAR) dated August 9, 2019 and the IE of Dr. Alfonso Marino, psychologist, dated August 23, 2019. I note that the period in dispute for IRBs under 5(1) is from September 30, 2019 to December 31, 2020.
12The MAR contains an assessment by Dr. Jacqueline Auguste, orthopaedic surgeon, that took place on July 3, 2019. Dr. August determined that the applicant’s head and neck had a functional range of motion in all planes with no end-range pain or stiffness. Likewise, his lumbar spine also had a functional range of motion in all planes with no end-range pain or stiffness.
13Dr. Auguste concludes that the applicant suffered WAD 1 cervical and lumbar sprain/strain injuries in the accident. She opines that the applicant does not have an impediment that would prevent him from resuming his pre-accident duties.
14The applicant relies on an assessment by Dr. Inese Robertus, physiatrist, dated July 22, 2020. The applicant’s cervical spine is described as being tender. The range of motion is notable for having a “slow rhythm” and he experiences pain in all directions. The range of motion of the applicant’s lumbar spine is also described as having a “slow rhythm” and pain causing moderate range restriction.
15I give more weight to the assessment of Dr. Auguste as her report is more consistent with the totality of the evidence.
16For example, an x-ray taken the day after the accident on January 1, 2019 at Etobicoke General Hospital describes the applicant’s cervical spine as “normal.”
17Dr. Stefen Uslinov was the applicant’s family doctor at the time of the accident. He documents a gradual improvement in the applicant’s neck pain that occurred during the first year after the accident. A clinical note dated October 4, 2019 confirms that the applicant has neck pain, but his neck also has a full range of motion (FROM) and no stiffness. This is inconsistent with Dr. Robertus’ finding that the applicant’s neck pain is so great that it causes him to move slowly and restricts movement in every direction.
18The Neurology Assessment of Dr. Verity John, neurologist, is also found in the MAR. He examined the applicant on July 24, 2019. He diagnosed the applicant with cervical and lumbar stain and tension type headaches. He also states that from a neurological perspective, he does not suffer an inability to “perform his employment.”
19The MAR also contains the IE of Robert Bullard, kinesiologist. Mr. Bullard identifies the physical demands of the applicant’s two pre-accident jobs. He then provides the results of an examination that took place on June 24, 2019 that tested the applicant’s functional ability to meet the physical demands of both jobs.
20The applicant attempted all tasks but did not demonstrate biomechanical changes, such as tightening his grip or widening his base of support. He also did not exhibit physiological changes, such as an increased heart rate or increased respiratory rate. Mr. Bullard opines that both of these observations indicate a submaximal effort. He further opines that the applicant put in a low effort and then terminated some tasks. As such, Mr. Bullard was not able to identify any functional limitations because he could not test the full extent of the applicant’s functional abilities.
21Despite this, the applicant did complete some tasks that yielded valid test results. For example, he demonstrated the ability to push 32.7 lbs and pull 41.3 lbs.
22The applicant successfully completed eight of the thirteen physical tasks listed in the report for the position of sprinkler fitter. He also completed eight of the eleven physical tasks for the LCBO customer service position. The valid test results are further evidence that the applicant has the ability to perform the essential tasks of his employment.
23There is some evidence that does not support the findings of Dr. Auguste. The applicant transitioned to a new family doctor, Dr. Gupta, in 2020. A clinical note dated October 14, 2020 states that the applicant has neck and back discomfort and restricted range of motion due to pain.
24As documented by Dr. Uslinov, the applicant’s family doctor, the applicant’s range of motion restrictions in his neck had previously resolved. Dr. Gupta provides no insight in the clinical note on why this impairment re-appears a year later. The clinical note also does not provide an explanation that links the range of motion restrictions to the accident. For these reasons, I give little weight to this clinical note.
25The applicant’s Disability Certificate, completed on January 15, 2019 by Dr. Bryan Wa, chiropractor, states that that applicant has a concussion.
26However, the previous day, on January 14, 2019, in the clinical notes Dr. Uslinov, the applicant denies hitting his head in the accident. In his submissions, the applicant confirms that he continues to deny “striking his head or losing consciousness…”
27In his neurological assessment, Dr. John opines that, based on the applicant’s description of his symptoms, there is no evidence of a concussion.
28Dr. Neilank K. Jha, neurosurgeon, assessed the applicant by telephone conference on February 11, 2021 and diagnosed the applicant with a traumatic brain injury. Dr. Jha does not explain how he arrived at this conclusion or how such a diagnosis is possible without confirmation of a head strike.
29In my view, there is not enough evidence to find, on a balance of probabilities, that the applicant sustained a concussion or a traumatic brain injury. Dr. John’s conclusion, that the applicant does not have a concussion, is consistent with there being no evidence of a head strike. Dr. Jha opines that the applicant sustained a traumatic brain injury, but offers no explanation on how such a diagnoses can be made without confirmation of a head strike. Consequently, I give more weight to the opinion of Dr. John and find that the applicant did not sustain a concussion in the accident.
30For all these reasons, I give more weight to the report of Dr. Auguste and find that the applicant has the ability to physically perform the essential tasks of his employment.
31In regard to psychological impairments, the applicant relies on the Psychological Assessment Report by Dr. Fahimeh Aghamohseni, psychologist, dated August 24, 2019.
32The applicant was interviewed and a number of psychometric tests were administered. Subsequently, Dr. Aghamohseni diagnoses the applicant with major depressive disorder, somatic symptom disorder, and specific phobia – situational type – vehicular. She concludes that the applicant is unable to perform the essential tasks of his pre-accident employment because of pain, headaches, and the applicant’s psychological impairments.
33Dr. Alfonso Marino, psychologist, assessed the applicant for an IE on August 14, 2019. He also interviewed the applicant and administered psychometric testing. Dr. Marino diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood, as well as having features of specific phobia related to driving. He concludes that the applicant’s psychological issues do not substantially prevent him from performing his employment tasks.
34Much of the information provided by the applicant in both interviews is similar. For example, his description of pain levels and the quality of his sleep. I also note that much of the psychometric testing yielded similar results. One of the main differences between the two reports is that Dr. Aghamohseni diagnoses the applicant with a somatic symptom disorder.
35Dr. Aghamohseni states in her report that the applicant is not taking prescribed pain medications. Instead, he uses Tylenol to manage pain, but only if absolutely necessary. Dr. Aghamohseni does not explain how someone with a somatic disorder, who has a heightened pain experience and suffers debilitating headaches, can manage pain with the sparing use of over the counter pain medication. In my view, this constitutes an unexplained inconsistency in the report of Dr. Aghamohseni.
36The applicant notes that Dr. Aghamohseni and Dr. Gupta document the applicant’s level of emotional distress and the fact that he is easily overwhelmed. In light of these findings, the applicant submits that Dr. Marino’s report should be given no weight.
37I disagree. After the accident, the applicant continued with his education and completed a three month student work placement in the summer of 2021. During this time he handled the basic accounting functions for North By South Positioning Inc. On the face of it, the applicant’s ability to continue his education and work as an accountant for a three month period is an indication of good functioning and is inconsistent with the premise that he is easily overwhelmed.
38For these reasons, I give more weight to the report of Dr. Marino and find that the applicant has not established, on a balance of probabilities, that his psychological impairments cause him to suffer a substantial inability to perform the essential tasks of his pre-accident employment. As such, he is not entitled to an IRB under 5(1) of the Schedule from September 30, 2019 to December 31, 2020.
39To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
40The applicant relies on the Psycho-Vocational Assessment by Dr. Erin Langis, psychologist, dated November 8, 2021. The applicant was interviewed for this report and psychometric tests were also administered. She diagnoses the applicant with major depressive disorder, somatic symptom disorder, and specific phobia – situational – vehicular. She also opines that the applicant’s impairments “are of sufficient severity to currently cause him a complete inability to perform any occupation within his training or experience.”
41The respondent submits that Dr. Langis does not appear to be aware of the applicant’s co-op work placement. It submits the absence of this information critically flaws her analysis, and as such, her report should be given no weight.
42According to the applicant, a work placement is not as demanding as a real job. As such, the applicant’s completion of a work placement is of little consequence and weight should be given to the report of Dr. Langis.
43I disagree. The completion of a three month work placement is clearly relevant to an assessment of the applicant’s ability to work. Dr. Langis’ conclusion that the applicant’s limitations have caused “a complete inability to perform any occupation within his training or experience” cannot be correct. The applicant has the ability to complete the work placement.
44As such, the applicant has not established, on a balance of probabilities, that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. This is because the report the applicant relies on to establish his entitlement to a post-104-week IRB is critically flawed for the reasons stated above. Thus, I find that he is not entitled to a post-104-week IRB under s. 6 of the Schedule.
45The applicant is not entitled to the four treatment plans.
46To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
47The applicant submits that the goals of treatment plans for facility based treatment, issues 2, 3, and 5 above, are pain reduction, increased range of motion, a return to the activities of daily living, and a return to pre-accident work activities. Moreover, Dr. Jha, Dr. Uslinov, Dr. Gupta, and Dr. Langis recommend facility based treatment and a chronic pain program.
48The respondent submits that Dr. Auguste found that the applicant sustained a WAD 1 cervical strain/sprain and lumbar strain/sprain injuries. She also found that the applicant’s report of disability is inconsistent with her clinical findings. As such, these treatment plans are not reasonable and necessary.
49The evidence in this case is not consistent in regard to the applicant’s impairments and the extent those impairments impact his ability to function. For example, Dr. Uslinov reports that the applicant’s head and neck range of motion restrictions had resolved in 2019. In the following year, Dr. Robertus observed the applicant moving his neck slowly due to pain. The applicant has not sorted through the evidence to identify and resolve any inconsistencies in his favour. He merely relies on recommendations for treatment. This is not enough to justify a finding, on a balance of probabilities, that these recommended treatment plans are reasonable and necessary.
50In regard to the treatment plan for a chronic pain assessment, the applicant submits that medical records show that he has regularly reported ongoing pain. The pain has not resolved and this justifies his entitlement to a chronic pain assessment listed as issue 4 above. The applicant also cites 16-002818 v. Unifund Assurance Company, 2017 CanLII 39709. This Tribunal decision states that once an insured person establishes that they continue to experience pain, then they should be given the opportunity to explore whether they suffer from chronic pain.
51There is conflicting evidence regarding the applicant’s ongoing pain complaints. The applicant reported to Dr. Aghamohseni that he does not use prescription pain medication. He only uses Tylenol, but only when absolutely necessary. This is inconsistent with the applicant reporting that he experiences pain that is so great it prevents him from working.
52Dr. Uslinov reports that the applicant’s range of motion restrictions in his neck have resolved. Dr. Auguste also found that the applicant’s head, neck, and lumbar spine have a functional range of motion with no end-range pain or stiffness. This is also inconsistent with the applicant’s ongoing pain complaint’s.
53The applicant makes no effort to explain or reconcile these inconsistencies which undermine his position that he continues to experience accident-related pain. Consequently, I find that the applicant has not established that the chronic pain assessment is reasonable and necessary.
Interest
54As there are no outstanding benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
55Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed the payment of benefits to justify an award pursuant to s. 10 of Regulation 664. Thus, no award is payable.
ORDER
56This application is dismissed.
Released: November 21, 2023
__________________________
Harry Adamidis
Adjudicator