Citation: Mohamed v. Aviva General Insurance, 2023 ONLAT 19-012193/AABS

Licence Appeal Tribunal File Number: 19-012193/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:

Dursitu Mohamed

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Lyndra Griffith

APPEARANCES:

For the Applicant: Dursitu Mohamed, Applicant Arash Goneh-Farahani, Paralegal

For the Respondent: Colin Yen, Adjuster Rozlien Brikha, Counsel

Court Reporter: Alyssa Scott

HEARD: by Videoconference: May 10, 2022

BACKGROUND

1The applicant, Dursitu Mohamed, was injured in an automobile accident on May 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance, the respondent.

2The respondent denied the applicant’s claim for a medical and rehabilitation benefits and also terminated the applicant’s income replacement benefits (IRBs) and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on May 14, 2021, and the matter proceeded to a videoconference hearing.

MOTION

4The respondent filed a Motion seeking an Order to exclude the applicant’s hearing brief produced beyond the deadline of April 11, 2022. At the comencement of the hearing the parties agreed to exclude the three progress reports from the applicant’s hearing brief and the respondent agreed to proceed with the hearing if it was allowed to make closing submissions in writing.

5I ordered closing submissions from the applicant by May 16, 2022, May 24, 2022 for the respondent and May 27, 2022 for the applicant’s reply.

ISSUES IN DISPUTE

6Preliminary Issue: The preliminary issue to be decided is:

1. Whether the applicant’s closing submissions comply with the Tribunal’s Order of May 10, 2022.

7The respondent submits that the applicant failed to comply my Order of May 10, 2022, where I ordered that the parties’ closing submissions shall be limited to 10 pages. The respondent submits that the applicant’s closing submissions are 25 pages in length, more than double the page limit.

8The respondent requests that the Tribunal exclude the applicant’s submissions from pages 13 to 25. The respondent was agreeable to allowing the applicant’s submissions up to page 12 as the first two pages of the submissions consist of identifying information. The respondent submits that it would be severely prejudiced if the Tribunal were to admit any of the applicant’s submissions over the page limit and it would prevent the Tribunal from carrying out a fair and efficient process.

9In her reply submissions, the applicant states that the respondent fails to appreciate that quotation and case law is not incorporated into the page limit. The applicant submits that if this information was removed, the page limit does not exceed 10 pages in length.

10At the motion the parties consented to the page length for the closing submissions and reply. That said, I did not specify that this would be exclusive of evidence and case law directly quoted within the written submissions. Therefore, I shall allow the applicant’s additional pages. The respondent addressed its concerns in its response and I find that allowing the applicant’s additional closing submissions pages would not prejudice the respondent.

11In a letter dated May 30, 2022, the respondent disagreed with multiple statements made in the applicant’s reply submissions dated May 27, 2022. I have not addressed these issues raised by the respondent, as I trust that these issues are sufficiently addressed in this decision. The purpose of closing submissions is to allow the parties the opportunity to summarize the evidence presented at the hearing, it is not an opportunity for both sides to argue every point with which they disagree.

12Substantive Issues: The issues to be decided in the hearing are:

1. Is the applicant entitled to an income replacement benefit (IRB) of $236.13 per week from October 18, 2019 to February 20, 2022²?

2. Is the applicant entitled to attendant care benefits (ACBs) of $1,559.34 per month from October 24, 2019 to date and ongoing?

3. Is the applicant entitled to $945.80 for transportation costs, recommended by 101 Physio in a treatment plan (OCF-18) dated September 10, 2019?

4. Is the applicant entitled to $2,460.00 for a chronic pain assessment, recommended by 101 Assessments in a treatment plan dated February 14, 2019?

5. Is the applicant entitled to interest on any overdue payments of benefits?

6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

13I find that:

(i) The applicant is not entitled to an income replacement benefit (IRB) of $236.13 per week from October 18, 2019 to February 20 2022.

(ii) The applicant is not entitled to attendant care benefits (ACBs) of $1,559.34 per month.

(iii) The applicant is not entitled to $945.80 for transportation costs.

(iv) The applicant is not entitled to $2,460.00 for a chronic pain assessment.

(v) The respondent is not liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant.

(vi) The applicant is not entitled to interest on any overdue payments of benefits.

ANALYSIS

The applicant’s entitlement to IRBs

14The applicant is seeking IRBs for the period of within 104 weeks of the accident and also for the period of 104 weeks after the accident and ongoing.

15For the reasons that follow, I find that the applicant is not entitled to IRBs for the period of from October 18, 2019 to February 20, 2022.

Entitlement to IRBs within 104 weeks of the accident (October 18, 2019 to April 30, 2020)

16The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

17The applicant bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from October 18, 2019 to April 30 2020.

18The applicant submits that following the subject accident, she attempted to return to work but after some time she was unable to perform the duties that were required of her due to her injuries. She submits that from September 25, 2018 to March 25, 2019, she did not return to work. The applicant submits that on March 25, 2019, she attempted to return to work at Dal Moros Fresh Pasta ToGo (Dal Moros) but after a few months, she found that she could not continue working in the position she had due to the injuries she suffered from since the subject accident.

19The applicant submits that given her limited education, and work history as a server/cashier, she is only suitable for physically demanding work. She submits that aside from a server/cashier position, there was no role for which she was suitable or fit for.

20In an Explanation of Benefits (EOB) dated September 18, 2019, the applicant was advised that the respondent was unable to consider her IRB entitlement due to lack of information. The respondent advised that as per Section 33 of the Schedule it required the applicant’s post accident income from April 2, 2019 to present from Dal-Moros and that this information was required to calculate her income replacement benefit. The applicant was further advised that if the information was not received, her benefits would be suspended on October 11, 2019. On October 16, 2019, the respondent sent the applicant an EOB indicating that it had not received the requested employment information and therefore her IRBs would be suspended on October 18, 2019.

21The respondent submits that the applicant filed the subject LAT Application with the Tribunal on November 4, 2019 and that it received the applicant’s paystubs from Dal-Moros in June of 2020. The respondent submits that on February 2, 2021, the applicant was advised that it would pay $7,457.41, inclusive of interest and adjusted based on post-accident income, for the period of May 8, 2018 to March 16, 2019. The respondent submits that it did not pay any IRB past March 16, 2019 because she had returned to work and was generating more income and she was notified on February 2, 2021 of the IRB stoppage.

22The respondent submits that it received the applicant’s 2020 Notice of Assessment (NOA) on June 22, 2021 and that through communication with applicant’s counsel, the respondent’s counsel advised the applicant that the NOA did not support the need for further reconsideration of the applicant’s entitlement for further IRB

23The respondent submits that the applicant’s oral evidence was that that in March of 2019 she returned to work on a part-time basis. However, the applicant reported to physiatrist, Dr. Yuri Marchuk in an Insurer’s Examination (IE) Physiatry Report dated July 24, 2019, that she was “currently working full-time at Dal-Moros as a cashier.”

24The respondent submits that the applicant’s oral evidence was that she stopped working at Dal-Moros due to the physical demands of the job, but her Record of Employment (ROE) from Dal-Moros confirms that it was due to “shortage of work/end of contract or season”. The applicant was employed from March 25, 2019 to January 10, 2020 and the respondent submits that she has not produced any evidence showing that the subject accident was the cause of her job loss in January of 2020.

25The respondent submits that the applicant’s 2020 Notice of Assessment shows that she generated $24,713.00 in total income and that this income was from the Canada Emergency Response Benefit (“CERB”). The respondent submits that in receiving CERB, the applicant confirms that she was off work in 2020 because of the pandemic given the declaration made to CRA in her application for the benefit. The respondent further submits that this is supported by the fact that the applicant stopped working at Dal-Moros in January 2020 due to shortage of work then she applied for CERB due to the Covid-19 outbreak in early 2020.

26The respondent also submits that the first time the applicant visited her family physician after the accident was on June 20, 2018 and that she testified that she has not seen her family physician or attended the hospital for any accident-related injuries since June 2018.

27The applicant submits that she received CERB simply as a benefit available to mitigate her loss of employment, as the respondent failed to pay her IRBs despite being in possession of the necessary documentation to calculate the outstanding amount owing on the benefit. She submits that during the pandemic, the majority of the jobs that were available, were now limited in terms of staff in the workforce as well as the operational hours. Therefore, the majority of cashier/server jobs, for which she had experience and training for, were not available to her during this time.

28In her reply submissions the applicant submits that the respondent has produced no medical opinion that comments on the denial of the applicant’s eligibility for IRB. The applicant maintains that there is no denial date for the IRB and the applicant should receive payment for the outstanding IRB’s that are owed to her. Although the applicant did not specify what time period she was referring to, October 18, 2019 to April 30, 2020 is the agreed upon period in dispute.

29The applicant seems to rely on the chronic pain assessment of medical practitioner Dr. Michael Gofeld completed December 12, 2019 (report dated January 5, 2020). It should be noted that Dr. Gofeld noted that “the client was unable to return to work after the accident”. This is inaccurate, the applicant went back to work following the accident for several months and then she started working at Dal Moros in March of 2019 and at the time this assessment was completed, she was employed. Similarly, the applicant underwent a neurological assessment in with Dr. Vincenzo Santo Basile September 24, 2019 and the report notes that “she is not currently working”.

30Based on the evidence before me I am not satisfied that the applicant has discharged her burden of proving that she had a substantial inability to perform the essential tasks of her pre-accident employment from October 18, 2019 to April 30, 2020. The applicant did not provide any corroborating clinical notes and records from her family physician or disability certificates (OCF-3) for the disputed period. There are also numerous inconsistencies and discrepancies between what the applicant told certain assessors and what the records reveal.

Entitlement to IRBs beyond 104 weeks of the accident (May 1, 2020 to February 20, 2022)

31To be eligible to receive IRBs 104 weeks post-accident, an applicant must meet the stricter test of being completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience.³

32I find that the applicant has failed to prove on a balance of probabilities that she is entitled to IRBs for the period from May 1, 2020 to February 20, 2022.

33The applicant confirmed that she was able to secure an employment as a concierge on February 21, 2022, where her duties are light in nature.

34The respondent submits that the applicant has failed to adduce any evidence that she has sustained a complete inability to engage in any employment for which she is reasonably suited by education, training or experience, and in the absence of such evidence, her claim for an IRB post 104-weeks should be, prima facie, dismissed.

35For the same reasons outlined above, I am not satisfied that the applicant has discharged her burden of proving that she was completely unable to engage in any employment for which he or she is reasonably suited by education, training or experience from May 1, 2020 to February 20, 2022.

Entitlement to ACBs

36Section 19 of the Schedule states the insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant.

37On March 12, 2019, the applicant underwent an attendant care assessment with registered nurse, Natalya Khramtsova. During the assessment, the applicant reported that following the accident, she was unable to independently perform certain aspects of her activities of daily living without aggravating her injuries. As a result, Ms. Khramtsova recommended that the applicant receive a total monthly attendant care benefit in the amount of $1,559.34. The Form 1 dated March 12, 2019, indicates that the applicant required assistance with grooming, feeding, hygiene and daily exercise. The applicant submits that on June 22, 2019, the respondent paid $7,624.84 in attendant care expenses to CaringForU for services provided to the applicant. The applicant did not specify what time period this payment was for.

38The applicant testified that when her attendant care benefits were terminated, she relied on her mother and siblings for assistance.

39The respondent submits that the applicant’s entitlement to attendant care benefit ended on October 31, 2019 pursuant to the Explanation of Benefits dated October 24, 2019. The applicant was advised that the respondent would stop paying for attendant care benefits incurred after October 31, 2019 based on the IE report of occupational therapist, Nicholas Livadas dated October 22, 2019. Mr. Livadas determined that the applicant demonstrated physical and functional tolerances, that she was employed and had resumed many of her personal care tasks. During the assessment, the applicant demonstrated functional mobility including sitting, transferring, standing, walking, stair climbing, squatting and kneeling. Mr. Livadas opined that attendant care assistance is not required at this time, as a result of any injury or impairment received from the motor vehicle accident.

40The respondent further submits that the applicant has not included any invoices to show that any attendant care services have been incurred beyond what was previously paid to the applicant. The respondent submits that the applicant has failed to show that this benefit is reasonable and necessary.

41Based on the evidence before me it appears that the applicant no longer requires attendant care as outlined in the Form 1 dated March 12, 2019. On March 25, 2019 she returned to work and the records show that she lost that employment due to a shortage of work in January 2020. Furthermore, the applicant has been employed as a concierge since February 21, 2022 and she has not provided convincing evidence that that she required attendant care beyond October 31, 2019.

The applicant’s entitlement to transportation expenses in the amount of $945.80

42Pursuant to s. 268.3 of the Insurance Act⁴, FSCO published a Transportation Expense Guideline (“the Guideline”). The Guideline provides a framework for insurers and insured persons to determine the circumstances under which expenses related to the transportation of an insured person, and his/her aide or attendant, to and from treatment sessions, counselling sessions, training sessions, assessments and examinations, must be paid by an insurer. This Guideline sets out authorized expenses and applicable rates for the purpose of ss. 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule.

43The insurer is liable to pay for all reasonable and necessary transportation expenses for each trip that the insured person makes to and from treatment sessions, counselling sessions, training sessions, assessments or examinations. The insurer is also liable to pay for all reasonable and necessary transportation expenses of the insured person’s aide or attendant. Transportation expenses are calculated based on the most direct route, excluding the first 50 kilometres (km) of each round-trip. The 50 km “deductible” is only applicable once in any round-trip.

44The applicant submits that she testified that she did not have access to a vehicle and did not have a valid driver licence. She further indicated that she had anxiety while in a vehicle following the subject accident. The applicant relies on A.L. vs. Aviva Insurance Canada⁵, where the applicant claimed the costs of transportation because she was unable to drive due to anxiety and when she did operate a vehicle, she only drove short distances. The applicant submits that Adjudicator Grant found that the incurred costs for transportation for a 24 km trip were deemed to be reasonable.

45I disagree with the applicant’s characterization of A.L. vs. Aviva Insurance Canada. The decision stated “A.L. submits that although the OCF-18s indicated a Robert Speck Parkway address, which is approximately a 24 km round trip from A.L.’s residence, the treatment took place at a facility located over one hour away, in Thornhill”. Therefore, the distance from the applicant’s home to the treatment location appears to be greater than the 50 km round trip.

46The respondent submits that in response to an OCF-18 dated September 5, 2019 from 101 Assessment it advised the applicant in the Explanation of Benefits dated September 17, 2019, that it was unable to consider any transportation expenses to and from treatment with Dr. Peter Waxer as the round trip is under the 50 km deductible.

47The respondent submits that the applicant has failed to produce any evidence illustrating that the distance the applicant traveled to attend treatment at 101 Assessments, the clinic which submitted the OCF-18 for transportation expenses, was more than 50 km round trip and therefore the 50 km deductible applies.

48I find that the applicant has failed to provide any evidence to indicate that the distance from the applicant’s residence to the treatment or assessment center was greater than 50 kilometers round trip. The applicant has failed to produce the OCF-18 that these transportation expenses are in relation to and has not addressed it in her submissions. The applicant has also not adduced any evidence that alternative forms of transportation such as public transit would not have been reasonable in the circumstances. Based on the evidence before me, the applicant has failed to prove on a balance of probabilities that she is entitled to transportation expenses.

The applicant’s entitlement to $2,460.00 for a chronic pain assessment?

49In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, applicant must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment.

50On the evidence, I find that applicant has failed to satisfy that onus and, therefore, she is not entitled to the proposed chronic pain assessment as it is not reasonable or necessary.

The applicant’s position

51The applicant submits that she testified that around the time when the treatment plan for the chronic pain assessment in dispute was prepared, she continued to experience physical pain stemming from the accident.

52The applicant submits that the respondent’s IE assessor Dr. Marchuk’s conclusion is evidence that this treatment plan is reasonable and necessary. The applicant submits that:

Given the interplay between the applicant’s psychological and physical symptoms, any physical improvements stemming from facility-based treatment may also have improved her psychological symptoms. The respondent has maintained its position despite sufficient medical documentation being provided to assess and adjust the file from the outset. The goals of the OCF-18’s was to achieve pain reduction and to facilitate a return to his activities of normal living.

53The applicant relies on the report of neurologist Dr. Basile dated September 4, 2019. The purpose of the assessment was to determine if there was an accident-related neurological impairment affecting a return to gainful employment, housekeeping and home maintenance. Dr. Basile diagnosed the applicant with post concussive syndrome, post traumatic headaches (tension type headaches), right sided C5-6 and left sided C8 cervical radiculopathy, musculoskeletal soft-tissue injuries as a source of her pain in the neck and back and chronic pain syndrome with central sensitization. Dr. Basile indicated that “at this point in time now 1 year and 4 months since the accident, Dursitu has not reached maximum medical improvement. Her prognosis for further recovery is guarded but is dependent upon further workup and treatments.”

54The applicant submits that pain relief is a legitimate goal of a treatment plan, even if the proposed services will not necessarily improve symptoms or lead to recovery. The applicant submits that the treatment plans at issue have a consequential goal and will render a significant benefit to the applicant and the treatment plan in dispute is reasonable and necessary.

55The applicant submits that the respondent has completely neglected the opinions of psychologists, Dr. Arpita Biswas and Dr. Konstantine Zakzanis in their submissions and this demonstrates how that responded disregarded her needs and entitlement to benefits.

56In her reply submissions the applicant states that respondent continues to rely only on the report of Dr. Marchuk but fails to appreciate the opinion provided by their other assessors. The respondent fails to acknowledge that Dr. Marchuk is not qualified to comment on whether the treatment plan for a chronic pain assessment reasonable and necessary, as chronic pain involves both physical and psychological complaints which are analyzed in depth by a specialist.

The respondent’s position

57The respondent submits that it advised the applicant in an Explanation of Benefits dated July 30, 2019, that it had determined that the OCF-18 dated January 17, 2019 for chronic pain assessment was not reasonable and necessary. This decision was based on the opinion of Dr. Marchuk, physiatrist dated July 24, 2019, who found that from a physical medicine perspective, the proposed treatment plan was not reasonable and necessary as the applicant did not suffer from chronic pain syndrome. Dr. Marchuk determined that the applicant has achieved maximal medical improvement.

58The respondent submits that the most recent records it has from the applicant’s family physician with respect to injuries from this accident are from June of 2018. The applicant has not provided any evidence that she has withdrawn from social milieu and she has restored pre-injury function such that she has returned to work. The respondent submits that the applicant has failed to show that the proposed treatment goals are reasonable and necessary.

59The respondent submits that applicant does not address the reasonableness and necessity of the treatment plan other than to state that she requires an order from the Tribunal approving the denied treatment plan. The respondent submits that the applicant has failed to establish that any of the treatment plan in dispute identify reasonable treatment goals that were being met to a reasonable degree and that the cost of achieving those goals were reasonable. The respondent notes that the applicant did not provide a copy of the treatment plans in issue neither did she explain why these treatment plans are reasonable and necessary.

60The respondent submits that the applicant has failed to meet her onus to prove that the treatment plan in dispute is reasonable and necessary and her claim should be prima facie dismissed.

61Based on the evidence before me, the applicant has not discharged her onus of establishing on a balance of probabilities that this assessment is reasonable and necessary. The applicant’s submissions on this issue were not clear, treatment plans were referenced in general, but it was unclear which treatment plan(s) the applicant is referring to on page 5 of her submissions (her paragraphs were not numbered). The applicant’s submissions were further complicated by the fact that her brief was not indexed, tabbed and consecutively page numbered. Furthermore, the applicant has not provided any corroborating documentation such as family physicians records, that would demonstrate that a chronic pain assessment would be reasonable and necessary. I am persuaded by Dr. Marchuk’s report and therefore I find that this assessment is not reasonable and necessary.

Award

62Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

63It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate⁶.

64In this case, since I found that no benefits were unreasonably withheld or delayed, the applicant is also not entitled to an award under Reg. 664 as no benefits are owing and/or withheld.

Interest

65As there are no benefits owing, no interest is payable.

CONCLUSION

66For the reasons outlined above, I find that the applicant:

(i) Is not entitled to an income replacement benefit;

(ii) Is not entitled to an attendant care benefit;

(iii) Is not entitled to transportation costs;

(iv) Is not entitled to the costs of chronic pain assessment;

(v) Is not entitled to an award under Regulation 664;

(vi) No interest is payable; and

(vii) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The timeline was amended to February 20, 2022 as the applicant advised that she returned to work on February 21, 2022.
3. 3Schedule, s. 6(2)(b).
4. 4Insurance Act, R.S.O. 1990, c. I.8 – June 8, 2019
5. 5A.L. vs. Aviva Insurance Canada, 2019 CanLII 77005 (ON LAT).
6. 6S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration) at para. 39.