McCalla v. Motor Vehicle Accident Claims Fund (MVACF), 2023 CanLII 119835

Citation: McCalla v. Motor Vehicle Accident Claims Fund (MVACF), 2023 ONLAT 20-011310/AABS

Licence Appeal Tribunal File Number: 20-011310/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:

Admarie McCalla Applicant

and

Motor Vehicle Accident Claims Fund (MVACF) Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Alim Ramji, Counsel

For the Respondent: Andrew Choi, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Admarie McCalla, the applicant, was involved in an automobile accident on October 13, 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, the Motor Vehicle Accident Claims Fund (MVACF), 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 (IRB) of $355.70 per week from October 20, 2018 to date and ongoing?

ii. Is the applicant entitled to $2,656.28 for a Chronic Pain Assessment, proposed by Elite Specialist Group in a treatment plan dated August 25, 2020 and denied on September 17, 2020?

iii. Is the applicant entitled to $1,570.97 ($4,239.54 less $2,668.57 approved) for psychological treatment, proposed by Elite Specialist Group in a treatment plan denied December 29, 2020?

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

RESULT

3The applicant has not proven entitlement to benefits or interest under the Schedule.

ANALYSIS

The applicant is not entitled to an IRB.

4To receive payment for an IRB under s. 5(1) of the Schedule, the applicant 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. 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 they meet the test.

5It is agreed that the applicant was employed as a personal support worker at the time the applicant was struck by a motor vehicle as a pedestrian on October 13, 2018. She was immediately taken to hospital via ambulance. The clinical notes and records from her visit to Mississauga Hospital are handwritten and largely illegible, however her instructions were to follow-up with her family doctor in 5 days.

6The applicant submits that she should be entitled to an IRB as she is not able to return to work. She relies on a report from Dr. O. Benmoftah, an orthopaedic surgeon. This report was based on an examination conducted October 14, 2020. However, while Dr. Benmoftah does identify the essential tasks of the applicant’s employment, he does not adequately address the legal test for the IRB. The essential tasks of her employment are identified in the report as sitting, standing walking, bending, lifting (up to 50 lbs), carrying (up to 50 lbs), pushing/pulling and manual dexterity. Aside from simply stating that the applicant is unable to preform these duties, there is no further analysis to show the extent of duties that the applicant can perform.

7From a psychological perspective, the applicant relies on a report from Dr. A Shaul, clinical psychologist, and Ms. H. Ilios, registered psychotherapist. The applicant was assessed on October 28, 2020 and the report is dated November 20, 2020. While the writers do note that the applicant “suffers a substantial inability to perform her pre-accident employment”, there is no mention of the essential tasks of her employment and how the applicant’s psychological state affects her performance of these tasks.

8The applicant saw Dr. G. Chou, her family physician, on October 18, 2018. Dr. Chou noted soft tissue sprain/strain injury of the right neck, right upper back, right lower back, right buttock and right posterior thigh in addition to occasional headaches. Dr. Chou also provided a medical note stating, “that the patient is unable to work at this time, until a re-assessment in two weeks”.

9Two weeks later, on November 1, 2018, the applicant was again seen by Dr. Chou. X-rays showed no fractures or bone injuries and the applicant reported a continuation of pain from the soft tissue injuries. Dr. Chou again provided a medical note stating that the applicant is unable to work for an additional two weeks pending re-assessment. It was also noted that the patient started physiotherapy at this time.

10On November 15, 2018, the applicant was again seen by Dr. Chou, the notes follow the same pattern of the previous two visits, with Dr. Chou again writing a note stating that the applicant is unable to work for an additional two weeks pending re-assessment. This is the last attestation by Dr. Chou that the applicant is unable to work. The period of inability to work diagnosed by Dr. Chou ended on November 29, 2018.

11The applicant was next seen on January 16, 2019 for a follow-up visit. It is noted that the applicant has been continuing physiotherapy and has noticed a 50% improvement in her symptoms. Dr. Chou also notes that the applicant stated she was unable to return to work, however, he did not write a note to that effect.

12The applicant was seen again on March 2, 2019 with no change. On April 15, 2019, the applicant noted a 60% improvement which was upgraded to 70% in a visit on July 6, 2019. Her improvement remained at 70% through a visit on September 26, 2019.

13The applicant was seen again on October 23, 2019 and four more times before April 8, 2021. These visits were all unrelated to the injuries she sustained in the accident and there is no mention of the accident in Dr. Chou’s notes after the September 26, 2019 visit.

14Also, while Dr. Chou had prescribed Vimovo (an anti-inflammatory) and Flexeril (a muscle relaxant) these prescriptions were not renewed at the September 26, 2019 visit.

15On April 8, 2021, the applicant stated that over the past two months she had been experiencing increased pain and stiffness over the mid-line of the upper and lower back. Dr. Chou again prescribed Vimovo and Flexeril.

16Her next visit with Dr. Chou happened on July 21, 2021 for reasons unrelated to the April 8th visit. The prescribed medications from April 8th were not renewed.

17The applicant was seen by Dr. Chou six more times between July 21, 2021 and May 31, 2022, these visits were unrelated to the previously noted soft tissue injuries and the associated prescriptions were not subsequently renewed.

18Based on the notes summarized above, the applicant benefits from a well documented relationship with her family physician. I accept Dr. Chou’s conclusion that the applicant was unable to work until November 29, 2018 and find the applicant is entitled to an IRB during this 47 day period, based on Dr. Chou’s express indication during this period that she was unable to work due to her accident-related impairments. According to submissions, the applicant has not returned to work since the accident.

19The respondent denied the IRB based on an Insurer’s Examination conducted by Dr. E. Dessouki on October 5, 2019. Dr. Dessouki concluded the applicant does not suffer a substantial inability to perform the essential demands of her pre-accident employment as a result of the accident. I accept this finding as it is supported by the clinical notes and records of Dr. Chou, where the last indication of the applicant’s inability to work was a clinical note dated November 29, 2018, and because the applicant has not provided any medical evidence to refute Dr. Dessouki’s findings.

20I do note that while the applicant has proven entitlement based on medical evidence for an IRB for the first 47 days post accident, the respondent submits that the applicant did not submit a completed Application for Accident Benefits until September 4, 2019. The application was not submitted as evidence, and I was unable to review it to verify the claim. The applicant was afforded an opportunity to submit a reply and address this issue, however no reply submissions were filed with the Tribunal. As a disability certificate dated September 11, 2019 was filed as evidence, I accept the position of the respondent that the applicant did not submit a completed application before September 4, 2019.

21Section 36(3) of Schedule states that the applicant is not entitled to a specified benefit before the completed disability certificate is submitted. The disability certificate submitted as evidence by the applicant is dated September 11, 2019. The applicant is therefore barred from receiving an IRB for any period prior to September 11, 2019 per Schedule. Therefore I find that the applicant is not entitled to an IRB during the 104 weeks period immediately post accident.

The applicant is not entitled to an IRB in the period beginning 104 weeks post accident

22To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

23The applicant did not submit a functional abilities evaluation, or a labour market survey. There were no section 25 reports submitted as evidence to support the position that the applicant suffers from a complete inability to engage in any employment for which they are reasonably suited by education, training or experience.

24The respondent provided a Functional Abilities Evaluation conducted by Dr. P. Cha (chiropractor) on July 27, 2021. In addition, a Labour Market Survey has been completed by Mr. D. Remedios (Forensic Vocational Specialist). These reports outline various other occupations for which the applicant possesses skills, qualifications, and functional abilities.

25Where it is the applicant’s burden to demonstrate entitlement to the post-104 IRB, and where the applicant has not provided medical evidence to support her claim and I find that the applicant has not demonstrated a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience and is therefore not entitled to an IRB 104 weeks post accident.

The chronic pain assessment is neither reasonable nor necessary

26To 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.

27The applicant submitted an assessment plan for a Chronic Pain Assessment on August 25, 2020. The respondent denied this treatment plan on September 17, 2020. The applicant pursued this assessment irrespective of the denial.

28The assessment was conducted on October 14, 2020 by Dr. Benmoftah.

29In the absence of the OCF-18, which was not submitted to the Tribunal as evidence, I accept the purpose of the assessment as outlined by Dr. Benmoftah in his report as:

a) Diagnoses and prognoses.

b) The impact of ongoing injuries and impairments on pre-accident activities of daily living, which may include recreational, social, vocational, religious, sports and housekeeping activities.

c) Recommendations regarding treatment.

30As mentioned above, the conclusion of this report contradicts the applicant’s clinical history with Dr. Chou, where she had not made any complaints of pain or received any prescription medication in the year prior to this assessment. I have outlined my reasons above for preferring Dr. Chou’s contemporaneous notes and records to the report of Dr. Benmoftah.

31A chronic pain assessment report cannot be considered reasonable or necessary when there are no chronic reports of pain to the family physician.

The applicant is not entitled to the disputed psychological benefits

32The applicant submitted a treatment plan for 14 psychological sessions of 1.5 hours in length. The respondent partially approved this treatment plan for 14 sessions of one hour in length. The issue in dispute for this treatment plan is whether the additional 30 minutes per approved session is reasonable and necessary.

33The report of Dr. Shaul and Ms. Ilios referenced above states that the applicant would benefit from 14 counselling sessions. This report does not indicate the recommended length per session.

34The respondent provided the report of an Insurer’s Examination conducted by Dr. A. Marino (clinical psychologist) on August 11, 2021. In this report Dr. Marino recommends 14 sessions of 1 hour in length.

35As the respondent approved 14 sessions of therapy, the dispute is whether 1.5-hour sessions are reasonable and necessary in contrast to the 1-hour sessions approved. I have reviewed the clinical notes and records of Dr. Chou. There is no mention of psychological treatment within these notes nor is there a recommendation for a specific session length.

36The partially denied OCF-18 was not provided as evidence.

37The only evidence before me from an expert that mentions session length is the report from Dr. Marino which recommends 60-minute sessions. Recommending a course of treatment in an OCF-18 is not evidence that the treatment is reasonable or necessary. The fact treatment was recommended is not sufficient to prove that treatment is reasonable or necessary.

38The applicant also notes that this treatment plan should be approved for 90-minute sessions as the respondent has subsequently approved an additional 14 sessions at 90 minutes in length in an OCF-18 submitted April 11, 2021.

39The respondent notes that this approval was erroneous and the result of an incomplete handover of the file from one adjuster to another.

40Regardless of the intention of the respondent, an approval of a subsequent treatment plan on April 11, 2021 does not prove the reasonableness or necessity of a preceding treatment plan submitted on December 29, 2020. It remains the burden of the applicant to prove that 90 minute sessions are necessary, and no medical evidence has been submitted to support this claim. Therefore, I find that the applicant is not entitled to 90 minute sessions in this treatment plan.

Interest

41As there are no benefits owed by the respondent, the applicant is not entitled to interest.

ORDER

42For the reasons outlined above, I find that:

i. The applicant is not entitled to an IRB;

ii. The applicant is not entitled to a chronic pain assessment;

iii. The applicant is not entitled to the disputed portion of the psychological treatment plan;

iv. The applicant is not entitled to interest on the payment of any overdue benefits pursuant to s. 51; and

v. The application is dismissed.