Citation: Rasiah v. Cooperators General Insurance Co., 2023 ONLAT 22-001330/AABS

Licence Appeal Tribunal File Number: 22-001330/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:

Lavakeswaran Rasiah

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Alex Kluchuk, Counsel

For the Respondent: Bruce Keay, Counsel

HEARD: By written submissions

OVERVIEW

1Lavakeswaran Rasiah, the applicant, was involved in an automobile accident on July 4, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $5,337.28 for occupational therapy services, recommended by GLA Rehab Inc., denied January 25, 2022?

2. Is the applicant entitled to $7,358.21 for rehabilitation training - life skills training, recommended by GLA Rehab Inc., denied January 25, 2022?

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

RESULT

3This application is not entitled to the two treatment plans, nor interest.

PROCEDURAL ISSUES

4In his reply submissions, the applicant objects to a surveillance report in the respondent’s brief. The case conference report and order (CCRO) required the disclosure of surveillance evidence to take place by February 12, 2023. The investigator report, dated December 16, 2021, was not disclosed to the applicant until he received the respondent’s written submissions in August, 2023. The applicant submits that the respondent has not complied with the order of the Tribunal. Consequently, the applicant asks for the surveillance report be struck from this proceeding.

5The respondent has not responded to the applicant’s objection.

6I agree with the applicant. The CCRO created a deadline for parties to exchange documents. The respondent has provided no explanation for failing to comply with this order. Consequently, there is no basis for me to allow the surveillance report into evidence. For this reason, the respondent’s surveillance report is excluded from this proceeding.

ANALYSIS

7I find that the treatment plans are not reasonable and necessary.

8To 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.

9The applicant submits that he continues to suffer from serious impairments as a result of the accident. The goals of the treatment plans are reasonable and supported by the Functional Assessment report dated November 15, 2021 by Malin Lindgren, occupational therapist. According to the applicant, these two plans are reasonable and necessary and should be paid in full.

10The respondent submits that the treatment plans are not reasonable because they provide services the applicant does not require given his well documented functional abilities.

11The goals of the treatment plan for occupational therapy are to provide cognitive retraining and education on compensatory strategies to assist the applicant with returning to work, increasing independence with daily activities (ADLs), developing a meaningful daily routine, and also to provide education on proper body mechanics in various postural positions.

12The life skills training provides the applicant an opportunity to utilize the cognitive retraining and education from occupational therapy by practicing functional tasks in the community under the supervision of an occupational therapist.

13The evidence shows the applicant continued working full time after the accident. His Application for Accident Benefits (OCF-1) was completed 25 days after the accident. It indicates that his injuries do not prevent him from working. A few days later, his Disability Certificate (OCF-3) indicates that he is not substantially unable to perform the essential tasks of his employment. His work appraisal from 2017 shows that the applicant either meets or exceeds expectations at work.

14It is noteworthy that the applicant works as a server at a hotel. This is a physically demanding job requiring him to serve meals, clean, put dirty dishes in the dishwasher room, and set up banquet tables for meetings. The job is also psychologically demanding as he deals directly with customers and works with colleagues on a team. Again, his 2017 performance review shows that he exceeds expectations in the areas of customer focus and teamwork. In my view, this evidence shows that in the years immediately following the accident the applicant thrived at work.

15The applicant took six months off work in 2018 due to physical and psychological symptoms. Even so, a “Functional Abilities Form” was completed on August 14, 2018 by Dr. Subhra Mohapatra. The form indicates that the applicant was able to return to fulltime work without any restrictions.

16The applicant stopped working during the Covid pandemic. According to Ms. Lindgren, the applicant was working approximately 20 hours per week at the time of her Functional Assessment report dated November 15, 2021. More recently, the applicant advised his counsel that he has been working six hour shifts on an “on call” basis since April, 2022. The applicant also advised his counsel that he is ready to show up for work whenever he is needed.

17The applicant continued working right after the accident and continues working to this day. As such, the treatment goal of facilitating a return to work is not reasonable and necessary.

18In regard to the ADLs, Ms. Lindgren does not identify limitations in self-care or hygiene. According to her, the applicant’s limitations are related to housekeeping and outdoor maintenance. She opines that the applicant has difficulties completing various tasks including meal preparation, washing dishes, laundry, cleaning, the outdoor maintenance tasks of lawn care and snow removal.

19She documents that the applicant’s standing tolerance is “just 5 minutes before he needs to sit down due to pain and fatigue.” She also notes that he cannot do any cooking since the accident because it triggers pain when standing. However, in the same report she writes that the applicant works 20 hours per week as a food server. It is unclear how it is possible for him to work the physically demanding job of a server given his very limited standing tolerance. In my view, this constitutes an unresolved inconsistency in her report.

20The same is true regarding his inability to wash dishes. The applicant handles dishes when serving food to customers. He also takes away dirty dishes and brings them to the dishwasher room. These are two of his main duties which he does for hours at a time. No explanation is given for why he cannot handle a smaller number of dishes for a shorter period time at home for dishwashing.

21Likewise, in an email dated April 22, 2022, applicant’s counsel informed the respondent that the applicant is required to clean at work. This is inconsistent with Ms. Lundgren’s statement that the applicant is unable to complete cleaning tasks at home.

22In regard to lawn care and snow removal, it is possible that these tasks are more strenuous than the applicant’s work duties and that the applicant may benefit from occupational therapy in these two areas.

23Ms. Lindgren opines that it is justified and necessary to the assist the applicant with developing a meaningful daily routine after work. However, she gives no explanation for why this assistance is needed. Consequently, there is no justification for this part of the treatment plans.

24The main goals of the treatment plan have been reviewed. The goal of a return to work has already been realized. The applicant has not established that he is not independent with ADLs. It is possible that he may not be independent with outdoor maintenance. However, this is just one component of the proposed treatment and, in my view, it would be unreasonable to approve the entirety of both treatment plans based on this one component. As well, the applicant has provided no justification for why he needs assistance to develop a meaningful daily routine after work. Based on these reasons, I find that the applicant has not established, on a balance of probabilities, that the two treatment plans are reasonable and necessary.

25As no benefits are payable, I find that the applicant is not entitled to interest.

ORDER

26The applicant is not entitled to the two treatment plans, nor interest.