Citation: Bayley v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-007729/AABS

Licence Appeal Tribunal File Number: 21-007729/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:

Rommel Bayley

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Linda Spurrell, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rommel Bayley (the “applicant”) was involved in an automobile accident on May 4, 2019, 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 Wawanesa Mutual Insurance Company (the “respondent”) 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 (the “IRB”) of $313.21 per week from December 8, 2019, to date and ongoing?

ii. Is the applicant entitled to chiropractic services proposed by Mackenzie Medical as follows:

a) $2,635.40 in a treatment plan (the “OCF-18”) dated December 21, 2020; and

b) $1,335.36 in an OCF-18 dated January 15, 2021?

iii. Is the applicant entitled to chiropractic services in the amount of $2,881.02, proposed by Physiomed in an OCF-18 dated September 30, 2020?

iv. Is the applicant entitled to an orthopaedic assessment in the amount of $2,520.00, proposed by Princeton Hill in OCF-18 dated March 11, 2021?

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

RESULT

3The applicant is not entitled to an IRB or to any of the OCF-18s in dispute. It follows that no interest is payable.

ANALYSIS

The applicant’s entitlement to an IRB

Within 104 weeks after the accident (up to May 4, 2021)

4I find the applicant has failed to demonstrate he is entitled to an IRB within 104 weeks after the accident.

5Section 5(1) of the Schedule lays out the eligibility criteria for an IRB within 104 weeks of the accident, which is a three-part test. In this case, the applicant must first show he was employed at least 26 weeks during the 52 weeks before the accident, or that he was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident; secondly, that he suffered a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident and within 104 weeks after the accident; and lastly, that his substantial inability is a result of the accident.

6The applicant submits he worked 26 of the 52 weeks before the accident as a metal machine worker. He points to medical imaging evidence that shows injuries to his lower spine. He says that the combination of his neck, left shoulder pain, lower back pain, severe insomnia, and chronic pain diagnosis have stopped him from returning to work to date in any capacity. I note here, however, that the chronic pain diagnosis falls outside of the 104-week period, and I address this in the next section where I deal with evidence relevant to that post-104-week period. The applicant relies on the clinical notes and records of Dr. Andrew Halusky (chiropractor), Dr. Patricia Porco (chiropractor), Dr. Zack Cernovsky (psychologist), and GNMI Medical Imaging.

7The respondent argues that the applicant’s records do not include any physician, specialist physician, or section 25 assessor that say the applicant was unable to return to work in the 104-week period. The respondent disputes that the medical imaging produced by the applicant shows accident-related injuries. The respondent relies on the section 44 insurer’s examinations (the “IE”) of Dr. Patrick Tansey (orthopaedic surgeon), Dr. Victor Naumetz (orthopaedic surgeon), and Dr. Karen Spivak (psychologist), as well as the clinical notes and records of the applicant’s family doctor, Dr. Taj Nadeem.

8I accept the applicant meets the first part of the IRB test. He produced an employer’s confirmation form (the “OCF-2”) that shows he was employed as a metal machine worker for InKan Limited from August 13, 2011, to February 20, 2019. The accident occurred about 10 weeks after his employment ended on May 4, 2019, so I calculate the applicant was employed for 42 of the 52 weeks before the accident.

9However, I find the applicant has failed to prove he meets the second part of the IRB test.

10The applicant relies heavily on the functional abilities assessment performed by Dr. Halusky. The applicant says this assessment shows he has a deficit in range of motion that affects his neck, low back, hips, and shoulders, as well as “very weak” left-hand grip strength and functional limitations in bending, carrying, and reaching that collectively make it unsafe to return to work. The respondent argues that Dr. Halusky makes “broad recommendations without having reviewed any medical evidence whatsoever,” and adds that Dr. Halusky’s recommendations are not backed by any specialist physicians.

11I did not place much weight on the functional abilities assessment performed by Dr. Halusky because its findings are not corroborated by the other medical evidence put before me. The report prepared by Dr. Halusky on July 24, 2020, says the applicant “cannot return to work safely at this time.” Dr. Halusky’s recommendations are informed by testing that determined mild range of motion restrictions in 14 of 65 areas that include the applicant’s neck, low back, hips, and shoulders; limited ability to bend, carry, and reach; and “very weak” left-hand grip strength.

12However, the respondent points to the clinical notes and records of Dr. Nadeem, who conducted a musculoskeletal examination of the applicant about two weeks after the accident on May 21, 2019, that found no range of motion issues in the applicant’s back or neck, as well as no issues with his left shoulder or neurological responses. The applicant was prescribed medication and counselled on pain and stress management—no limitations or restrictions in employment duties were noted at that time. These findings are consistent with Dr. Naumetz’s physical examination, as documented in his report dated November 5, 2019, that did not find any “significant physical abnormalities” and determined the applicant’s injuries to his cervical spine and left shoulder were of a “minor soft-tissue nature.” Dr. Naumetz concludes that the applicant is not substantially unable to perform his work tasks. Although Dr. Tansey’s report of January 4, 2021, did not specifically comment on the applicant’s ability to work, it did note that Dr. Tansey’s physical examination of the applicant could find no musculoskeletal cause for his reported disabilities. Dr. Tansey found no evidence that his reported impairments resulted from the accident.

13I would add here too, that Dr. Tansey, in his report of February 1, 2021, also reviewed the imaging evidence relied upon by the applicant to show back pain resulting from the accident. The applicant’s submissions say the MRI report, dated October 8, 2020, indicates “focal DDD and disc protrusion at L5/S1 resulting in contact of both descending S1 nerve roots, more so on the right as well.” My review of this evidence finds this impression is accurately described by the applicant. However, the applicant’s submissions do not point me to any interpretation of these findings by a medical professional that explain whether the applicant’s complaints of low back pain are consistent with this impression, and whether these findings are likely attributed to the accident. The only opinion offered in this regard comes from the respondent’s evidence, and Dr. Tansey in particular, who determined the MRI showed degenerative disc disease that is unrelated to the accident. While the applicant’s reply submissions argue that Dr. Tansey does not comment on the disc protrusion specifically, I give this little weight because the applicant did not produce evidence that addressed the relevance of the disc protrusion to his pain, or show that this condition merits consideration independent from the degenerative disc disease addressed by Dr. Tansey. I accept Dr. Tansey’s explanation to be reasonable on balance.

14Taken together, I find the corroborating records and reports of Dr. Nadeem, Dr. Naumetz, and Dr. Tansey are more compelling medial evidence than the contrary findings offered by Dr. Halusky, or the impression of the applicant’s MRI results. In my view, Dr. Halusky’s report and the MRI report are insufficient to meet the applicant’s burden when weighed against this other medical evidence.

15I turn now to the other evidence put forward in the applicant’s submissions on the IRB issue, including Dr. Porco and Dr. Cernovsky.

16The applicant points to an OCF-3 completed by Dr. Porco to show he is substantially unable to perform his essential work duties. The respondent does not address this evidence in its submissions.

17I am not persuaded that the certificate of disability (the “OCF-3”) completed by Dr. Porco on December 21, 2020, is compelling evidence of the applicant’s substantial inability to perform the essential tasks of his employment. While I see Dr. Porco indicates the applicant meets parts two and three of the IRB test on the OCF-3, I am not pointed to the medical evidence relied upon by Dr. Porco to arrive at this conclusion. Although there are a list of injuries and sequalae documented by Dr. Porco on the OCF-3, there is no mention of corresponding limitations or disabilities that convince me the applicant suffers a substantial inability to perform his essential work tasks.

18The applicant partly attributes his inability to work to “severe” insomnia, and points to a report by Dr. Cernovsky, dated February 29, 2020. The applicant says Dr. Cernovsky found him to have severe insomnia and that this interferes extensively with his daytime functioning, which in turn would affect employment options for him. The respondent argues that Dr. Cernovsky did not review any medical history to inform his findings and instead relied entirely on the applicant’s self-reports. The respondent further claims that Dr. Cernovsky’s understanding of the accident is not consistent with the ambulance reports in evidence, and that Dr. Cernovsky offers no opinion on the applicant’s ability to work. The respondent says the applicant demonstrated no difficulties with memory or concentration during his IE with Dr. Spivak on September 27, 2019, and that the applicant told Dr. Spivak that he is not substantially unable to perform his work-related tasks from a psychological perspective.

19I prefer the evidence of Dr. Spivak to that of Dr. Cernovsky. In my view, Dr. Spivak’s findings were more persuasive than those offered by Dr. Cernovsky because Dr. Spivak’s report conducts a file review as part of her analysis, while Dr. Cernovsky does not. As well, Dr. Spivak directly addresses the applicant’s ability to work and concludes that he is not substantially unable to perform his work-related tasks from a psychological perspective. Dr. Cernovsky does not address the applicant’s ability to work in his report. Although Dr. Cernovsky diagnosis the applicant with nonorganic insomnia disorder, I agree with the respondent that the applicant’s claim of daytime functioning and employment difficulties attributed to his insomnia are not supported in Dr. Cernovsky’s report. On the contrary, and as the respondent points out, Dr. Spivak’s behavioural observations of the applicant were that he did not demonstrate any difficulties with memory or concentration during his IE—no contradictory behavioural observations were offered in Dr. Cernovsky’s report to suggest the applicant’s functionality was affected by insomnia. As such, I am not convinced the applicant has shown his insomnia has a relevant bearing on his ability to perform his essential work tasks.

20On balance, I find the evidence referenced by the applicant does not prove he has a substantial inability to perform the essential tasks of his employment per section 5(1) of the Schedule, and is therefore not entitled to an IRB.

After the first 104 weeks that followed the accident (from May 5, 2021, and onwards)

21I find the applicant has failed to demonstrate he is entitled to an IRB after the first 104 weeks following the accident.

22Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after the first 104 weeks of disability. This requires the applicant to show he suffers, as a result of the accident, a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

23The applicant submits he is diagnosed with chronic pain—pertaining specifically to his neck, shoulder, and back—and that this, in concert with his left shoulder pain, lower back pain, and severe insomnia, has stopped him from returning to work to date in any capacity. The applicant relies on the report of Dr. Mann to prove his chronic pain diagnosis.

24The respondent argues that Dr. Mann’s report indicates the applicant’s symptoms “wax and wane.” The respondent also says Dr. Mann makes no specialist referrals and does not comment on the applicant’s “ability to work in his pre-accident capacity, let alone any capacity whatsoever.”

25I am not convinced that Dr. Mann’s report of June 2, 2022, when considered along with the applicant’s insomnia and pain in his neck, shoulder and back, shows a complete inability to engage in any suitable employment. This is because Dr. Mann does not address how this diagnosis affects the applicant’s ability to work. It follows too, that if the applicant’s other evidence pertaining to his pain and insomnia falls short of proving a substantial inability perform his job duties, that this evidence is also insufficient to prove a complete inability to work, which is a higher bar to meet. Accordingly, I find no basis to conclude the applicant has met his evidentiary onus per section 6(2)(b) of the Schedule to prove he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

The applicant’s entitlement to the disputed OCF-18s

26To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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.

OCF-18s for chiropractic services in the amounts of $2,635.40, $1,335.36, and $2,881.02

27I find the applicant has failed to show these OCF-18s are reasonable and necessary.

28The applicant submits that every time he went to his family doctor with respect to his accident injuries, he was told to continue his treatment and the benefits of doing so. He adds that he started to feel some improvement after incurring treatment on the OCF-18 in the amount of $2,635.40. He says the lack of treatment has affected his employment opportunities as well as his personal and social life, and describes emotional and behavioural difficulties that cause him to socialize less and not perform household chores. The applicant also says the respondent’s denial of the OCF-18 in the amount of $2,881.02 was not compliant with sections 38(8) and 38(11) of the Schedule, which entitles the applicant to this treatment.

29The respondent argues the applicant does not provide clear reasons for arguing that the denial notice for OCF-18 in the amount of $2,881.01 was non-compliant. The respondent adds that the applicant’s submissions on how his employment opportunities and quality of life are affected by the lack of treatment are not supported by evidence and should be given no weight.

30The applicant’s argument and evidence do not substantiate that these OCF-18s for chiropractic treatment are reasonable and necessary. Firstly, the applicant’s submissions do not explain how the respondent’s denial of the OCF-18 in the amount of $2,881.02 is non-compliant with the Schedule, and do not point to any evidence of non-compliance. I therefore gave this argument little weight.

31Secondly, the applicant points only to the clinical notes and records of Dr. Farkhanda Rashid (family physician), on November 26, 2020, to show the applicant will benefit from physiotherapy. I find this evidence is insufficient to establish the reasonableness and necessity of each OCF-18 for chiropractic services. Further, the applicant’s submissions do not point me to evidence that substantiates he was feeling better or otherwise improving through treatment in December 2020 as he claims, so I did not place much weight here.

32While the applicant contends the lack of treatment (i.e., the treatment he did not incur that was denied by the respondent) has affected his quality of life and employment prospects, he failed to show me how these are relevant considerations (i.e., the relationship of these complaints to the treatment and goals proposed in each OCF-18). In fact, the applicant’s submissions do not mention or make arguments pertaining to the goals of each OCF-18, and provide no basis for me to impartially analyze whether they are reasonable and can reasonably be met by the proposed treatment. The applicant’s submissions do not address the reasonableness of the costs for each OCF-18. On balance, I find the applicant is not entitled to these OCF-18 because he failed to convince me they are reasonable and necessary.

OCF-18 for an orthopaedic assessment in the amount of $2,520.00

33I find the applicant has failed to show this OCF-18 is reasonable and necessary.

34The applicant submits the respondent denied this OCF-18 because it was a duplication of services. The applicant adds this denial is not reasonable because Dr. Rashid had suggested the referral in his phone appointment with the applicant on October 28, 2020, and that Dr. Rashid’s suggestion should be afforded more weight because he is the applicant’s treating physician.

35The respondent argues that the denial letter for this OCF-18 indicates it was not reasonable and necessary because Dr. Tansey determined the applicant had recovered from his injuries. The respondent says that Dr. Tansey’s opinion should be afforded more weight because he is an orthopaedic specialist.

36I am not persuaded by the applicant’s submissions. This is partly because the applicant’s submissions did not properly direct me to Dr. Rashid’s referral note in evidence, and I therefore cannot validate the applicant’s submissions against the evidence. But even if I could, a family physician’s referral to an orthopaedic assessment does not, in and of itself, prove this OCF-18 is reasonable and necessary. The applicant would also need to point to the medical evidence that supported this referral, and the applicant’s submissions on this OCF-18 do not do that. Further, the applicant makes no arguments on the OCF-18 goals or costs that I can analyze to impartially assess the reasonableness and necessity of this treatment plan. On balance, I find the applicant is not entitled to this OCF-18 because he failed to convince me it is reasonable and necessary.

Interest

37There are no benefits owing, therefore no interest is payable.

ORDER

38The application is dismissed.