Licence Appeal Tribunal File Number: 20-011567/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:
Sebastian Naskrent
Applicant
And
Western Assurance Company
Respondent
DECISION
ADJUDICATORS:
Janet Rowsell, Member Rebecca Hines, Member
APPEARANCES:
For the Applicant:
Sebastian Naskrent, Applicant
Dimple Verma, Counsel
For the Respondent:
Ken Yip, Counsel
Court Reporter:
Michele Gordon
Heard by Videoconference:
August 3, 4 and 5, 2022
OVERVIEW
1Sebastian Naskrent (the “applicant”) was involved in an automobile accident on February 29, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a three-day videoconference hearing, where we heard the testimony of the applicant, Shelley Rush, psychotherapist, and Dr. Efala, orthopaedic surgeon. On behalf of the respondent, we heard the testimony of insurer examination (“IE”) assessors Dr. Sandhu, medical doctor, Harish Sharma, occupational therapist and Christine Pearce, private investigator.
ISSUES IN DISPUTE
3We have been asked to decide the following issues:
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400 per week from July 28, 2020 to the two-year mark?
Is the applicant entitled to a medical benefit for $7,980 ($9,774.20 less the approved amount for physiotherapy for $1,794.20) for Platelet Rich Plasma Therapy (“PRP”) recommended by Sport and Exercise Medicine Institute submitted September 14, 2020?
Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $1,685.50 per month from November 27, 2020 to March 24, 2022?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After considering the parties submissions and all of the evidence we find,
- The applicant is not entitled to any of the benefits claimed, interest or an award.
PROCEDURAL ISSUES
Motions – Production Issues
5The respondent brought a motion for the production of the applicant’s updated Instagram records and argues that these documents are necessary because the applicant’s credibility is at the centre of this dispute. It submits that these records will demonstrate that the applicant has not been straight forward about his functional limitations. The applicant submits that he has already produced his Facebook and Instagram records from 2016 to May 2022. Further, he has been locked out of his Instagram account and because these records are not readily available it will delay the hearing and a determination being made in this matter.
6The applicant also brought a motion seeking the updated accident benefit file and adjuster’s log notes as the respondent did not comply with the disclosure deadline provided for in the Tribunal’s case conference report and order. Further, he was not able to access the records sent by the respondent due to technical issues. The applicant submits that the updated log notes and accident benefit file are relevant to the applicant’s claim for an award.
7The Tribunal declined the relief sought by both parties as they both made these requests less than two-weeks prior to the commencement of the hearing. Further, a reasonable explanation was not provided by either party for why these requests were being made at the last minute when they received notice of the hearing almost nine months prior. In our view, ordering the relief sought by both parties would result in a delay of the hearing and the resulting decision which is not in line with the Tribunal’s mandate for the fast and efficient resolution of accident benefit disputes.
Respondent’s Motion to Limit IRB Issue to the Two-Year Mark
8The respondent brought a motion seeking to limit the IRB issue to the two-year mark as it is in the process of conducting insurer examinations (“IEs”) to assess the applicant’s entitlement to the benefit. The respondent had to reschedule its IEs because of the applicant’s hip surgery in March 2022. It submits that it would be procedurally unfair to proceed as it is unable to defend the case against it. The applicant opposed the respondent’s request on the basis that it did not provide advanced notice of this request. Further, the applicant was prepared to address his post-104 entitlement to IRBs at this hearing.
9The Tribunal agrees with the respondent and limits the dispute to the two-year mark. Although, we agree with the applicant that the respondent should have brought this motion sooner, it has a right under s.44 of the Schedule to conduct IEs. Further, if we do not limit the time period of entitlement, the respondent would be unable to fairly participate in the hearing and will be prevented from defending the case against it. Therefore, we have limited the current dispute of the IRBs to the two-year mark.
BACKGROUND
10On February 29, 2020, the applicant was involved in an accident where his vehicle was rear-ended on a ramp entering Highway 427 in Toronto. His vehicle was deemed a write off as a result. Police and ambulance services arrived on the scene, and the applicant was transported to hospital, where he complained of neck, back, left shoulder pain and headaches. The applicant testified that he lost consciousness following the accident, however, emergency services found the applicant conscious. The applicant was discharged from the hospital the same day. He followed up with his family doctor who referred him for physiotherapy and psychological treatment.
11Prior to the accident, the applicant had been employed for seven years with St. Joseph’s Hospital in Toronto as a security guard. The applicant maintains that he has been unable to return to work as a result of his accident-related physical and psychological impairments. Further, that his employment was terminated in July 2020 because of these impairments. In addition, he submits that the accident caused injuries to his hips which exacerbated his pre-existing osteoarthritis which led to the need for bilateral hip surgery on March 8, 2022.
12The respondent argues that the applicant’s pre-accident medical history is significant, and that the accident did not cause the applicant’s impairments. It submits he had a history of hip dysplasia which interfered with his ability to walk and run. Further, he had end stage osteoarthritis which would have required bilateral hip replacement surgery regardless of the accident. Finally, the accident was not the cause of the applicant’s psychological impairment. Instead, this impairment was as a result of being terminated from his employment for unrelated issues and other post-accident factors. We will first address the issue of causation and will then address whether the applicant is entitled to the benefits claimed.
Did the accident cause the applicant’s impairments?
13It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for the benefits claimed. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. As per our reasons below, we find that the accident was not a necessary cause of the exacerbation of the applicant’s pre-existing osteoarthritis in his hips or his psychological impairment.
Physical Impairment –Osteoarthritis in Hips
14The applicant did not report any impairment to his hips to paramedics and hospital staff on the day of the accident. His primary complaints on that date were neck, left shoulder and low back pain. The pre-accident clinical notes and record (“CNRs”) of Dr. Vachhani, family doctor, support that the applicant had severe osteoarthritis in his hips. These CNRs also support that he also suffered from hip dysplasia dating back to 2017 which impacted his ability to walk and run. The Tribunal also does not find that the pre- and post-accident MRIs support the applicant’s position that the accident caused a hip impairment or exacerbated his pre-existing osteoarthritis in his hips.
15The applicant relies on the consultation proposal of Dr. Stoddard, medical doctor dated August 25, 2020. In that proposal Dr. Stoddard states that the applicant’s pre-existing osteoarthritis was made worse by the accident. Dr. Stoddard’s patient chart supports that the applicant had been treated for issues with his right and left hips dating back to 2018. The chart states that the applicant has pain in his left hip which radiates to his knee since the accident. Further, the applicant’s right hip was doing better prior to the accident. The Tribunal does not find Dr. Stoddard’s opinion helpful as the doctor does not explain how he came to the conclusion that the accident made the applicant’s condition worse. Nor was Dr. Stoddard called to testify to give evidence on this opinion.
16The applicant also relies on the orthopedic assessment of Dr. Efala dated January 12, 2021. In that report, Dr. Efala concluded that the accident could have [Tribunal’s emphasis] exacerbated the applicant’s osteoarthritis in his left hip. Further, the accident was the cause of all of the applicant’s impairments and functional limitations. During cross-examination Dr. Efala acknowledged that he did not review any pre-accident medical records and was not aware of the severity of the applicant’s osteoarthritis in his hips. Nor was the doctor aware of the fact that the applicant had a history of hip dysplasia which impacted his ability to walk and run. Dr. Efala also admitted during cross-examination that had he had this information it likely would have changed his opinion on the accident being the cause of the applicant’s limitations and his inability to work. The Tribunal does not find Dr. Efala’s testimony or report helpful as far as supporting the applicant’s position that the accident was the cause or exacerbated his pre-accident osteoarthritis in his hips.
17As highlighted above, the respondent argues that the applicant had end stage osteoarthritis which would have required bilateral hip replacement surgery regardless of the accident. It relies on the IE report of Dr. Sandhu who determined that the diagnostic imaging does not support that the applicant sustained any impairment to either hip as a result of the accident.
18The Tribunal prefers the IE reports and evidence of Dr. Sandhu regarding the accident-related diagnosis as it was more consistent with the medical evidence. Dr. Sandhu testified that the 2018 MRI of the applicant’s hip supports that the applicant had severe end stage osteoarthritis. Dr. Sandhu confirmed that the pre-accident imaging supports that the applicant would have required bilateral hip replacement surgery regardless of the accident. Further, imaging of the applicant’s back shows that he had degenerative disc disease which was unrelated to the accident. In the doctor’s reports dated October 14, 2020, and November 11, 2020, Dr. Sandhu opined that the applicant sustained soft tissue injuries as a result of the accident. In addition, his presentation was consistent with residual symptoms from myofascial sprains to his cervical spine, left shoulder, and lumbar spine, along with ongoing posttraumatic headaches. Dr. Sandhu also indicated that the applicant’s pre-existing osteoarthritis would result in a more prolonged course of recovery. The Tribunal accepts this opinion.
19The applicant has not met his onus in proving on a balance of probabilities that the accident was the necessary cause of the impairments to the applicant’s hips or exacerbated his osteoarthritis which led to the resulting functional limitations.
Psychological Impairment
20The Tribunal does not find that the accident caused the applicant’s psychological impairment.
21The evidence supports that the applicant was referred to Shelly Rush, psychotherapist following a breakdown he had during a fact-finding meeting with his employer involving the termination of his employment. The referral for psychological counseling post-dates the accident by five months and the accident is not cited as being a reason for the referral. Ms. Rush testified that following psychological testing, the applicant was diagnosed as suffering from Post Traumatic Stress Disorder, severe depression, and anxiety as a result of the accident. She also testified that the accident was a cause of his impairment.
22The applicant also relies on the psychological IE completed by Dr. Siegel dated October 14, 2020, which diagnosed the applicant with Adjustment Disorder with mixed symptoms of depression and anxiety as a result of the accident.
23As noted above, the respondent argues that the accident was not the cause the applicant’s psychological impairment. Instead, it submits that any psychological impairment stems from the applicant’s termination from his employment and labour grievance process. Finally, other post-accident factors impacted his psychological condition which were unrelated to the accident. We agree.
24The Tribunal does not find the opinion or psychological report of Ms. Rush dated March 15, 2021, helpful as it does not discuss the impact of the accident on the applicant’s psychological symptoms or impairment. Ms. Rush attributes the applicant’s psychological issues on his dispute with his employer and the accident interchangeably. For this reason, we assign this report little weight. Furthermore, the accident is rarely mentioned in the counselling session notes of Chloe Brown, psychotherapist. The session notes reveal that the applicant was upset because he was dismissed from his employment, and he discussed concerns about his children, and his friend being diagnosed with cancer. In addition, the Tribunal finds psychiatrist, Dr. Jeeva’s consultation reports equally unhelpful in stating the cause of the applicant’s psychological symptoms and diagnosis as there is little discussion about the accident in these reports. Furthermore, family doctor, Dr. Vachhani’s CNRs refer to the applicant’s termination from his employment as being the main reason for his psychological complaints.
25The Tribunal also does not find Dr. Siegel’s IE report helpful as the doctor did not review the post-accident CNRs of Dr. Vachhani or session notes of Chloe Brown which as already indicated rarely discuss the accident as being the cause of the applicant’s symptoms.
26For the above-noted reasons, the applicant has not proven on a balance of probabilities that the accident was a necessary cause of his psychological impairment.
Is the applicant entitled to a weekly income replacement benefit (“IRB”) in the amount of $400 from July 28, 2020, to the two-year mark?
27The Tribunal finds the applicant is not entitled to an IRB from July 28, 2020, to the two-year mark.
28Section 5(1) of the Schedule provides that an insurer shall pay an IRB if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential duties of their pre-accident employment.
29The case law supports that in assessing an insured’s entitlement to an IRB it is first necessary to determine the essential tasks of their pre-accident employment. The second part of the inquiry involves determining whether the accident caused the impairments and to what extent the impairments resulted in the individual’s inability to work. Based on the applicant’s testimony, we find the essential tasks of a security guard to include the following:
a) Responding to hospital emergencies which required the ability to walk and run;
b) Exterior and interior patrols of the premises;
c) Physically restraining patients;
d) Escorting patients to different units;
e) Direct intervention with patients and visitors by using physical force;
f) Communicating with emergency personnel;
g) Searching the hospital to locate missing patients which could many hours; and
h) Wearing a uniform which included a vest weighing up to 10 pounds, along with a utility belt with handcuffs and radio.
30The applicant maintains that prior to the accident he did not have any functional limitations in his ability to carry out his employment tasks. However, post-accident he has been unable to return to work because he sustained a left shoulder impairment and chronic low back pain. As already highlighted above, the Tribunal determined that the applicant’s osteoarthritis and psychological impairment were not caused by the accident. Further, the pre-accident medical evidence supports that the applicant was limited in his ability to walk and run due to hip dysplasia. Of significance, the applicant’s pre-accident employment record was not submitted for our consideration. Therefore, it is unknown whether the applicant was on modified duties prior to the accident due to his inability to run.
31The respondent maintains that the applicant is not credible and that he was terminated from his employment due to an unrelated incident. The Tribunal agrees.
32Following the accident, the applicant received short-term disability benefits for several months before the payments were terminated by the Hospital’s Ontario Disability Income Plan, as the applicant was not being treated and assessed by a physician for a disability.
33The applicant testified that he returned to work on April 30, 2020, on modified duties which included sedentary tasks as an accommodation following his accident-related injuries. The applicant was then approved by Dr. Vachhani to return to full duties on June 11, 2020.
34This matter is complicated by the fact that the applicant’s employment was terminated in July 2020. The applicant testified that he was terminated because he was unable to perform the essential tasks of his employment due to his accident-related injuries. Based on the evidence before us, we do not find the applicant’s testimony credible.
35The Tribunal finds the applicant’s evidence regarding the basis for his termination from the St. Joseph’s Hospital inconsistent. The applicant’s employment file indicates he was invited to a termination interview following a human rights grievance process and investigation following alleged offensive comments made by him on social media. When questioned about the investigation, the applicant stated that he entered into a settlement with his employer and received compensation for wrongful termination. The Tribunal finds the basis for the applicant’s dismissal from his employment at St. Joseph’s Hospital unrelated to the accident.
36The applicant argues that the fact that he was cleared to return to work by his family doctor and was subsequently terminated does not mean that he would have been successful in carrying out the substantial tasks of his employment. Further, section 11 of the Schedule supports that a temporary return to work within the first 104 weeks of an accident does not disentitle an insured person from claiming future IRBs.
37Of significance, there is nothing in Dr. Vachhani’s CNRs for the disputed time period which supports that the applicant had an ongoing disability as a result of the accident, that would prevent him from working in his pre-accident employment. The respondent submits that the Tribunal should draw an adverse inference from Dr. Vachhani’s failure to testify at this hearing as the doctor was listed in the applicant’s initial witness list. Further, Dr. Vachhani avoided the respondent’s attempts to summon the doctor. It argues that as the applicant’s family doctor it would be assumed that the doctor’s testimony would be helpful to the applicant’s case. No explanation was provided by the applicant for why he did not call his family doctor to testify. The Tribunal agrees with the respondent and draws an adverse inference from Dr. Vachhani’s failure to testify at the hearing. We agree with the respondent that the fact the doctor did not testify and avoided being served with the summons means that the doctor’s testimony likely would not have supported the applicant’s position.
38The applicant also submits that the report and testimony of Dr. Efala supports that he was unable to carry out the substantial tasks of his employment as a result of his accident-related impairments. As already highlighted above, we did not find Dr. Efala’s report or opinion persuasive. Further, the doctor agreed that had he known the extent of the applicant’s pre-accident medical history it would have likely changed his opinion on the applicant’s inability to work.
39The applicant also relies on the reports of Dr. Bruni, general practitioner, dated October 5, 2020, Dr. Prigozhikh, neurologist, dated January 29, 2021, and the assessment of Dr. Cho, general practitioner, dated April 5, 2021. These assessors diagnosed the applicant with a variety of accident-related impairments including chronic pain and were of the opinion that the applicant could not work because of his accident-related impairments. Further, the applicant contends that the respondent did not conduct an IE addressing his entitlement to an IRB. Consequently, the reports of his assessors should be preferred. In addition, Dr. Sandhu’s IE supports the applicant’s position as the doctor determined that the applicant had functional limitations as a result of the accident in his reports.
40The applicant testified that he has not returned to work in any capacity since his termination from his employment in July 2020. This is not accurate as the psychotherapy session notes of Chloe Brown discuss the applicant working as a personal trainer and operating a snake breeding business in 2021. The applicant was unable to adequately explain these inconsistencies during cross-examination. Further, the 2021 income tax records support that applicant earned employment income in 2021. In our view, having the physical stamina to be a personal trainer contradicts the applicant’s position that he has a disability that interfered with his ability to work.
41Overall, the Tribunal does not find the applicant to be a credible witness as there were no reasonable explanations for the inconsistencies in the evidence. Further, the Tribunal finds that the applicant’s assessors: Dr. Efala, Dr. Bruni, Dr. Prigozhikh and Dr. Cho relied on the applicant’s self-reports about his accident-related impairments and functional limitations. None of these doctors reviewed pre-accident medical records in rendering their opinions. Since the Tribunal does not find the applicant’s testimony credible, therefore we give the diagnoses and conclusions based on the applicant’s self-reports and rendered by these assessors’ little weight.
42Finally, Dr. Sandhu’s report states that the applicant had an impaired ability to perform any heavy lifting, repetitive bending, or above-shoulder activities with his left arm. Dr. Sandhu noted that the applicant’s impairments were temporary in nature and would resolve within a twelve-week period. Of significance, the purpose of Dr. Sandhu’s report was to address whether the applicant’s impairments fit within the minor injury guideline not his entitlement to an IRB. A CNR of Dr. Vachhani from December 2020, notes that the applicant’s left shoulder impairment had resolved. Finally, the applicant did not address in his testimony how the above functional limitations would result in a substantial inability for him to perform the essential tasks of his employment as a security guard. The Tribunal finds the applicant’s testimony about his ability to carry out the essential tasks of his employment inconsistent, vague, and lacking in detail.
43For the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he suffered a substantial inability to carry out the essential tasks of his employment as a result of the accident.
Is the applicant entitled to a medical benefit for $7,980 ($9,774.20 less the approved amount for physiotherapy for $1,794.20) for PRP injections recommended by Sport and Exercise Medicine Institute in an OCF-18 submitted September 14, 2020?
44The applicant is not entitled to $7,980.00 for the OCF-18 for platelet rich plasma (“PRP”) therapy injections.
45To receive payment for a treatment and assessment plan under s. 14 and 15 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.
46The OCF-18 was prepared by Dr. Stoddard and is dated September 14, 2020. The goal was to provide the applicant with three PRP injections to his right and left hips to reduce pain, increase strength and range of motion in order to return the applicant to his activities of normal living. PRP injection is a process in which the patient’s blood is withdrawn, centrifuged for platelets, and reinjected into the target area to stimulate repair of damaged tissue in order to reduce pain1.
47The respondent denied the OCF-18 relying on the IE report of Dr. Sandhu from November 11, 2020. Dr. Sandhu opined that PRP injections are not reasonable and necessary because clinical studies have determined that the use of PRP injections is ineffective in treating musculoskeletal soft tissue injuries or osteoarthritis. The Tribunal prefers the opinion of Dr. Sandhu over Dr. Stoddard for the following reasons.
48As already highlighted above, the Tribunal does not find that the accident caused or exacerbated the applicant’s pre-existing osteoarthritis in his hips. The Tribunal places little weight on the proposal of Dr. Stoddard as the doctor provides no explanation for the opinion that the applicant’s pre-existing osteoarthritis was exacerbated by the accident. Further, Dr. Stoddard did not testify to explain his opinion on causation or to refute Dr. Sandhu’s opinion that this is not a viable treatment option to address any of the applicant’s accident-related impairments. For these reasons, the Tribunal gives Dr. Stoddard’s evidence little weight.
49The applicant submitted numerous medical articles and journals which discuss the efficacy of PRP treatment. Dr. Sandhu testified that the articles submitted by the applicant did not change his stated opinion that PRP treatment is not reasonable or necessary. Dr. Sandhu testified that Cochrane studies (which are considered the gold standard for clinical practice) support that there was no benefit to musculoskeletal soft tissue injuries or osteoarthritis when treated with PRP injections. Dr. Sandhu stated that the basis for PRP injections being excluded from clinical practice directives is that it had been demonstrated through scientific analysis that PRP treatment is not effective. The articles provided by applicant’s counsel were described and distinguished by Dr. Sandhu as narrative studies summarizing data, but these were not authoritative respecting clinical practice directives. The Tribunal places limited weight on these articles because they were not backed up by expert opinion and did little to displace Dr. Sandhu’s opinion.
50The applicant has not met his onus in proving on a balance of probabilities that the balance of the OCF-18 in the amount of $7,980.00 for PRP injections is reasonable and necessary.
Is the applicant entitled to an (“ACB”) in the amount of $1,685.50 per month from November 27, 2020, to date and ongoing?
51The applicant is not entitled to an ACB in the amount of $1,685.60 per month from November 27, 2020, to March 24, 2022.
52Under Section 19(1)(a) of the Schedule, an insurer must pay for reasonable and necessary attendant care services incurred by or on behalf of the insured person as a result of the accident.
53The applicant relies on the attendant care assessment report and Form 1 of Arash Sasani, occupational therapist dated November 27, 2020. The report supports that the applicant had limitations with dressing, bathing, mobility, and carrying out his housekeeping tasks including grocery shopping. The report states that the applicant has limitations with activities involving standing, sitting, walking, reaching, lifting, and pulling due to his left shoulder, neck, back, hip pain and headaches.
54The respondent argues that any of the applicant’s functional limitations were not as a result of the accident but as a result of the applicant’s osteoarthritis and hip replacement surgery. It relies on the attendant care assessment IE report and form 1 prepared by Harish Sharma, occupational therapist dated February 1, 2021. This assessor determined that the applicant did not have any functional limitations as a result of any accident-related impairment. We agree for the following reasons.
55The Form 1 prepared by Mr. Sasani recommended $1,685.50 per month in ACBs, which when broken down included 15.1 hours per week under level 1 for assistance with dressing, meal preparation and mobility. Under level 2, 8.16 hours was recommended for ensuring comfort and safety and security in the home environment. Under Level 3, 2.5 hours per week was proposed to assist the applicant with stretching and his home exercise program. The report also recommended that the applicant requires 21 hours per week for housekeeping and 30 hours per week for caregiving services along with a variety of assistive devices and occupational therapy sessions.
56Of significance, Mr. Sasani did not review any pre- or post-accident medical records and relied on the applicant’s self-reports. Further, Mr. Sasani did not testify at the hearing despite the respondent’s efforts to summon him as a witness. As with Dr. Vachhani, it would be assumed that Mr. Sasani’s testimony would be helpful to the applicant’s case. No explanation was provided by the applicant to explain the witnesses’ failure to testify. The Tribunal draws an adverse inference from the Mr. Sasani’s failure to testify at the hearing. In addition, we find Mr. Sasani’s recommendations to be inconsistent with the medical evidence before us. The following are some examples of same:
a) The return-to-work questionnaire prepared by Dr. Vachhani dated April 22, 2020 noted that the applicant is fully capable of performing household chores, shopping for groceries and personal hygiene. A CNR from December 2020, notes that the applicant is able to go grocery shopping.
b) The applicant testified that he was given modified duties at work which required sitting for up to six hours per day. This was inconsistent with Mr. Sasani’s opinion that the applicant was limited in his ability to sit up to 15 minutes.
c) Dr. Siegel’s IE report dated October 1, 2020 notes that the applicant does his own grocery shopping, bathes and dresses independently. Further, he still cooks post-accident but tends to buy ready made food. In addition, he cleans his apartment, but it takes him longer.
d) Ms. Rush’s CNRs note that the applicant was working as a personal trainer which conflicts with Mr. Sasani’s opinion that the applicant requires supervision to exercise.
57For the above reasons, the Tribunal assigns Mr. Sasani’s opinion and report little weight. Dr. Efala’s report also supports that the applicant needs ACBs as a result of his musculoskeletal impairments and his self reported limitations. As already noted above, Dr. Efala’s findings are largely derived from the applicant’s self reports, which the Tribunal does not find credible. Further, the doctor acknowledged that had he reviewed the applicant’s pre-accident medical records it likely would have impacted his opinion regarding the applicant’s impairments and functional limitations.
58The Tribunal prefers the IE report and findings of the attendant care assessment and report and Form 1 of Harish Sharma dated February 1, 2021, which supports that the applicant does not require ACBs as a result of the accident. Overall, the Tribunal finds the report of Mr. Sharma more consistent with the medical record and more thorough in detail and analysis. Further, the therapist reviewed CNRs as part of the assessment. We also accord Mr. Sharma’s opinion more weight as he testified at the hearing to support his opinion. His testimony supports that during his assessment, the applicant reported that he was able to carry out all of the activities on the Form, albeit some with pain and at a slower pace. Mr. Sharma formally and informally observed the applicant’s functional tolerances and task completion. He also conducted objective testing (range of motion, strength testing and grip strength) which supports the applicant has the physical capability to be independent with his personal care activities and all other tasks listed on Form 1.
59For all of the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he requires ACBs as a result of his accident-related impairments.
Is the applicant entitled to interest on any overdue payment of benefits?
60Section 51 (1) states that interest is payable if a benefit is overdue or if the insurer fails to pay a benefit within the time required under this regulation. The applicant is not entitled to interest as the Tribunal has determined that there are no payments overdue.
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
61The applicant seeks an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. In light of our decision in this matter, the Tribunal does not find an award appropriate as we have determined that the applicant has not met his onus in proving entitlement to the benefits claimed. Consequently, we do not find that any benefits were unreasonably withheld.
ORDER
62For all of the above-noted reasons, we find:
(i) The applicant is not entitled to any of the benefits claimed, interest or an award. The application is dismissed.
Released: February 17, 2023
__________________________
Janet Rowsell
Adjudicator
__________________________
Rebecca Hines
Adjudicator