AMENDED DECISION
Licence Appeal Tribunal File Number: 21-008460/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:
Ngoc Le
Applicant
and
Unica Insurance Inc.
Respondent
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Ngoc Le, Applicant Michael Wolfe, Counsel
For the Respondent: Mary Ramkisson, Adjuster Domenic Nicassio, Counsel
Court Reporter: Breanna Clancy
Vietnamese Interpreters: Kevin Nguyen, Kim Le and Quyen Tran
Heard by Videoconference: February 27, 28 and March 1, 2 and 3, 2023
OVERVIEW
1Ngoc Le, the applicant, was involved in an automobile accident on May 23, 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 the respondent, Unica, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 14, 2020, and ongoing? ii. Is the applicant entitled to the amount of $4,787.27 for chiropractic services, proposed by Physiotherapy Fix in a treatment plan submitted and denied on September 5, 2019? iii. Is the applicant entitled to the amount of $2,793.35 for a physiatry iv. Assessment, proposed by Excel Medical Diagnostics in a plan submitted v. April 9, 2021, and denied May 17, 2021? vi. Is the applicant entitled to the amount of $2,200.00 for a psychological vii. Examination, proposed in a plan submitted on May 14, 2021, and denied on May 17, 2021? viii. Is the applicant entitled to the amount of $2,781.95 for a functional abilities assessment, proposed in a plan submitted on April 19, 2021, and denied on April 20, 2021? ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the income replacement benefit, as she has not shown that she suffers a substantial inability to perform the essential tasks of her pre-accident employment/self-employment or a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience as a result of the accident. The applicant is not entitled to chiropractic treatment and the functional abilities assessment, as they are not found to be reasonable and necessary.
4The applicant is entitled to the physiatry assessment, and the psychological assessment, and interest on these overdue assessments.
PROCEDURAL ISSUES
5The respondent objected to its former adjuster, Alisa Stupak, being called as a witness, despite being summonsed by the applicant. It argued that her testimony was not relevant and that the applicant counsel's decision to send her the evidence brief in advance of the hearing was a violation of the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) ("PIPEDA"). The applicant disagreed and submitted that Ms. Stupak was properly summonsed, and her testimony spoke to the issues in dispute, as she adjusted the applicant's file at the time of the disputed benefits.
6I find that the Tribunal does not have jurisdiction regarding compliance with PIPEDA. Moreover, section 16 of PIPEDA provides remedies for PIPEDA breaches, which are assigned to the federal Privacy Commission and/or the Federal Court. Therefore, it is not for the Tribunal to do such.
7I order that Ms. Stupak testify, under section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which allows me to admit any testimony that may be relevant to the subject matter. However, I qualify this order to ensure that the testimony will focus on the issues in dispute and only that.
8The applicant also sought to rely on four pages of forms of the applicant's Long-Term Disability claim file from Desjardins, from the applicant's collateral benefits related to her position, hours, and functional requirements, which were not in the briefs of the parties. The respondent objected to this, as this document was not exchanged by the production deadlines and that the respondent would be unable to proceed should the document be admitted, as it required time to assess the documents.
9I find that the four pages from Desjardins shall not be admitted, as they were not submitted following the Case Conference Report and Order and would require time for the respondent to prepare, which could not be afforded during the hearing.
10The applicant also requested permission to enter into evidence at the hearing a chart summarizing Dr. Allan Leung's clinical notes and records. She submitted that this procedure is often used in the Court of Appeal to avoid lengthy examinations and to include clinical notes and records in evidence. The respondent objected to this and argued that it would be prejudicial to allow such evidence to be admitted without allowing it to ensure the document properly reflects the applicant's medical history and could not do so within the time confines of the hearing. I agree and order that the chart not be included in evidence, as it was not submitted with the brief, following the Case Conference Report and Order and cannot be verified by the respondent promptly. Instead, I will undertake to review all of Dr. Leung's legible clinical notes and records ("CNRs") myself.
11The applicant objected to the respondent relying on photos of the vehicle damage and argued that this evidence was not relevant and was not submitted in accordance with the deadlines of the Tribunal. The respondent disagreed and submitted that the evidence was relevant concerning the mechanics of the applicant's injuries and had been submitted in accordance with the timelines. I find that the evidence shall be allowed into the hearing, as it was submitted in accordance with the timelines of the Case Conference Report and Order. I also find this evidence is relevant, but only in terms of the mechanics of the applicant's injuries, and questions related to this photo shall be limited to this subject.
ANALYSIS
The applicant is not entitled to pre-104 Income Replacement Benefits ("IRBs")
12To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
13I find that the applicant has not suffered a substantial inability to perform the pre-accident essential tasks of her employment as a result of her accident-related injuries.
14The parties did not agree on what the applicant's pre-accident work tasks consisted of, as the applicant and Ms. LeChau provided testimony that the applicant's job description did not match her assigned tasks of her physical demands analysis for her position as a material handler for touch ups and packaging at Teknion. The respondent argued the description was accurate and should be accepted.
15I did not find the applicant's evidence persuasive as she was unable to fully explain why her job tasks were not properly reflected. Therefore, I find that the applicant was not responsible for carrying panels and worksurfaces weighing up to fifty pounds as part of her job duties and accepted her duties on her physical demands analysis, being: pulling rolls of foam, installing screws or inserts and performing touch up, operating an air tool gun and manual tools, working at a bench table, walking, moving around skids and pump trucks, packing and inspecting products.
16The applicant submitted she suffered a substantial inability to perform her essential job tasks as a result of the accident. The respondent disagreed.
17The applicant argued that as a result of her accident, she suffered physical injuries including a partial-thickness supraspinatus tendon right tear, headaches, a disc bulge, and stenosis, which eventually led to chronic pain, and major depressive disorder.
18The applicant relied on her testimony, the testimony of her friend and coworker, Ms. Chau LeChau, Dr. Sharleen McDowall, psychologist Dr. Phuong "Peter" Tran, psychiatrist, Dr. Allan Leung, family doctor, and Dr. Yen-Fun Chen, physiatrist, to show that as a result of her injuries, the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment.
19The respondent argued that the applicant did not suffer a substantial inability to perform her pre-accident employment tasks and relied on the evidence of Michael Drinkwater, physiotherapist, Dr. Mansour Alvi, orthopedic specialist, Dr. Marjan Saghatoleslami, psychologist and its surveillance evidence.
20Though the applicant was able to articulate and highlight her extensive and physically demanding work career as a material handler immediately before the accident, and the injuries she suffered as a result of her accident, there were obvious communication issues that occurred during the hearing. I appreciated that this could be due to the applicant's educational background and need for interpretation services. However, I could not ignore the fact that the applicant was unable to recollect a great deal of the information asked of her. I also noticed that the applicant denied having health issues before her accident beyond her hypothyroidism, despite evidence that the applicant had back and knee issues before her accident. Therefore, I afforded her testimony less weight.
21I agreed that the applicant's performance and efforts during her Insurer's Examination ("IE"s) as noted by Mr. Drinkwater, Dr. Alvi and Dr. Saghatoleslami also suggested credibility issues. These included issues with effort on several of the testing mechanisms. Dr. Alvi also commented that these results are typical for a person experiencing a serious injury, such as paralysis.
22The applicant has been diagnosed with chronic pain by both Dr. Tran and Dr. Leung, and major depressive disorder – moderate, with anxious distress, by Dr. McDowall and Dr. Tran, which could explain some of the applicant's reduced efforts during the IEs. However, this does not clarify why the applicant recorded zero effort during parts of her IEs. I am also aware that the applicant participated in the IEs with the assistance of an interpreter, and that cultural barriers may also exist in such a setting, however, again, this does not address the applicant's complete lack of effort during portions of her IEs.
23I assigned less weight to the evidence of Dr. McDowall, which, like the evidence of the applicant, contained an error, indicating that her assessment had been conducted both virtually and in person, despite the doctor testifying that she assessed the applicant in person. I also found Dr. McDowall failed to fully address or acknowledge the issue of validity concerns, as raised by Dr. Saghatoleslami in her report, and therefore, put less weight on Dr. McDowall's findings.
24Dr. Leung was also not able to provide persuasive evidence that the accident caused the applicant to suffer a substantial inability to engage in the essential tasks of her employment.
25I was also left with apprehension when Dr. Leung, the applicant's family doctor, testified that the applicant had no significant pre-accident health issues beyond her hypothyroidism that could contribute to her pain. This was challenged with evidence of the applicant's pre-accident complaints of back pain, which was diagnosed as neuralgia, and knee pain, which was diagnosed as osteoarthrosis, and diabetes. Dr. Leung also admitted that these pre-accident issues may have contributed to the applicant's fatigue and pain as well as her physically demanding job.
26Though Dr. Tran also opined that the applicant was unable to do her activities of daily living ("ADL") as she was having trouble with her cleaning, self-care, cooking and socializing, and was unable to work, he refused to clarify if this was because of the applicant's accident or for other reasons such as her age or previous employment. Dr. Tran's CNRs also did not provide validity testing, which would have been helpful, given the credibility issues of the applicant. Moreover, Dr. Tran confirmed he was not aware of said issues and ought to have been.
27I put less weight on Dr. Alvi and Mr. Drinkwater's findings in terms of considering the applicant's chronic pain, as both admitted that this domain of medicine was outside their scopes of practice. However, I did consider their comments with respect to validity testing issues.
28I also put little weight on the findings of Dr. Saghatoleslami, as she clarified during her testimony that she thought the applicant had a pre-existing psychological injury due to a clerical problem with Dr. Leung's CNRs. As such, her findings did not account for the applicant's pre-existing medical history properly, and therefore, did not accurately capture the applicant's injuries. Therefore, the applicant is not entitled to the pre-104-week IRB as she has not shown that as a result of the accident, within 104 weeks after the accident, she suffers a substantial inability to perform the essential tasks of her pre-accident employment.
The applicant is not entitled to post-104 Income Replacement Benefits ("IRB"s)
29To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
30Both parties led the same evidence to support the post-104 IRB issue. The applicant relied on her testimony, that of Ms. Chau Le Chau, and the evidence of Dr. McDowall, Dr. Tran, Dr. Leung and Dr. Chen to support that as a result of her accident, she suffers a complete inability to engage in any employment or self-employment for which the applicant is reasonably suited by education, training or experience. The applicant led evidence with respect to her limited knowledge of English, her work experience involving mainly manual labour and her grade four level education. The respondent relied on the evidence of Mr. Drinkwater, Dr. Alvi and Dr. Saghatoleslami to dispute the applicant's position.
31I did find Dr. McDowall's evidence spoke to the applicant's psychological injury as a result of the accident and afforded them weight. However, the doctor's reasoning for finding that the applicant suffered a complete inability to engage in any employment for which she is suited by education, training or experience was less than robust: most of the doctor's findings were based on the applicant's self-reporting, and her questionable psychometric scoring, despite the validity concerns of Dr. Saghatoleslami. Moreover, the doctor did not explain or explore how the applicant's major depressive disorder prevented her from engaging in her essential job duties.
32Though Dr. Chen found that the applicant suffered a complete inability to engage in any employment, I did not find this evidence convincing, as the doctor did not engage in any kind of testing to determine the limits of the applicant's abilities within her job duties or explain how her impairment prevented her from engaging in her essential job duties. Instead, I was left with evidence of an applicant suffering from chronic pain whose abilities, limits and efforts had not fully been explored, which made it difficult to assess the post-104 IRB test.
33Though I appreciated the applicant's arguments, as discussed above, her evidence does not speak convincingly to her complete inability to engage in any employment or self-employment for which she is reasonably suited by education, experience or training. The evidence of Dr. Tran, Dr. Chen and Dr. McDowall did not rely on sufficient metrics to fully explore the applicant's accident-related impairments, and therefore, has not shown that she cannot engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Therefore, the applicant is not entitled to the post 104-week income replacement benefit.
Chiropractic services
34To receive payment for a treatment and assessment plan under s. 14 and 15 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.
35The applicant relied on her testimony and the testimony of Dr. Leung, who both submitted that physical therapy helped the applicant with her chronic pain and sprain of her cervical and lumbar spine, shoulder and hand pain. The applicant also relied on imaging requested by Dr. Leung, which showed the partial-thickness supraspinatus tendon right tear, disc bulge, and stenosis.
36The respondent relied on the IEs of Dr. Alvi, who found that the applicant suffered mild strains of her spine and shoulder which were likely related to her age and that further physical therapy was not reasonable or necessary. The respondent also argued that the applicant's pre-accident CNRs showed she was dealing with back pain before her accident, and that this pain was not caused by the accident, but rather wear and tear from her age and physically demanding pre-accident job as a material handler.
37I find that the applicant is not entitled to chiropractic services. When an applicant seeks a medical benefit, such as chiropractic service, she bears the onus of showing, based on a balance of probabilities, that the treatment is reasonable and necessary. In this case, the applicant did not have persuasive medical evidence that the chiropractic services are reasonable and necessary for her accident injuries. Based on Dr. Leung's CNRs, it appears that the applicant's back pain started before the accident and became chronic pain as a result of the accident.
38In terms of the applicant's chronic pain, she did not provide evidence from a medical professional that specifically states why she requires further chiropractic treatment or how this would benefit her beyond temporary relief.
39Instead, I found Dr. Alvi's evidence more convincing, as it spoke directly to the issue in dispute and fully explained why chiropractic services were not reasonable and necessary, as the applicant had no physical injuries that necessitated passive therapy and suffered from mild myofascial strains to her back and shoulder, and was recommended to return to her family doctor for medication for her strains and participate in home- based exercises under the direction of her family doctor. I found this evidence persuasive, and therefore, accepted it. I find the applicant is not entitled to the benefit.
Physiatry Assessment
40The applicant also sought funding for a physiatry assessment to fully explore her diagnosis of chronic pain and the limits of such. The applicant relied on the evidence of Dr. Chen and Dr. Leung, who both diagnosed the applicant with chronic pain.
41The respondent relied on the IE of Dr. Alvi, who found that the applicant suffered mild strains of her spine and shoulder which were likely related to her age and did not suffer an impairment as a result of the accident. The respondent submitted that the applicant had failed to provide persuasive evidence that she suffered from chronic pain and ought to have called her family members to fully demonstrate her reliance on them.
42I find that the physiatry assessment is reasonable and necessary. I was persuaded by Dr. Chen's testimony regarding the applicant, the doctor's assessment and observations and findings regarding the applicant and chronic pain. Dr. Chen was able to explain how he assessed the applicant using the American Medical Association's Guidelines – 6th Edition ("AMA Guides") when evaluating the applicant's chronic pain and applied this criterion correctly. This evidence was also corroborated by Dr. Leung, who meticulously noted the applicant's ongoing complaints of pain and its impairments after her accident.
43I also noted that nearly every medical professional who interacted with or assessed the applicant, including Mr. Drinkwater, Dr. Albi and Dr. Saghatoleslami noted pain-focused behaviours of the applicant, which support her need to investigate her pain.
44Though Dr. Albi's IE did not find the applicant suffered a physical impairment, the doctor himself stated that he is not qualified to assess chronic pain, and therefore, I found his evidence unpersuasive regarding the issue of the physiatry assessment. Therefore, the applicant is entitled to the physiatry assessment.
Psychological Examination
45The applicant requested funding for a psychological examination with Dr. McDowall. The applicant submitted that as a result of her accident, she suffered from psychological impairments.
46The applicant relied on her testimony and the evidence of Dr. Leung, Dr. McDowall and Dr. Tran.
47The respondent submitted that the requested psychological examination was not reasonable and necessary and relied on the evidence of Dr. Saghatoleslami,
48I find the requested psychological examination to be reasonable and necessary. I did not find Dr. Saghatoleslami's evidence persuasive, given that the doctor clarified that she thought the applicant had a pre-existing psychological injury due to a clerical problem with Dr. Leung's CNRs and therefore, put less weight on her findings.
49Instead, I found Dr. Leung's testimony and CNRs supported the applicant's position that she has been suffering from psychological symptoms worthy of further investigation after the accident. These findings were supported by Dr. McDowall's evidence, and I found the totality of the applicant's evidence convincing. Therefore, the psychological assessment is found to be reasonable and necessary.
Functional Abilities Assessment
50The applicant argued that the Functional Abilities Assessment ("FAE") was reasonable and necessary to further explore her abilities and limits as a result of her accident-related impairments. The respondent disagreed.
51The applicant relied on her testimony and the evidence of Dr. Leung, whom both submitted that the applicant suffered an impairment as a result of her accident and required her physical abilities to be evaluated.
52The respondent relied on the evidence of Mr. Drinkwater and Dr. Alvi, whom both found that the applicant showed limitations with her movement that could not be correlated to a musculoskeletal impairment, and therefore, the FAE would not be reasonable and necessary.
53I find that the FAE requested by the applicant is not reasonable and necessary. As discussed above, I find that the applicant suffers from chronic pain due to her accident. This position is further supported by the comments from Mr. Drinkwater and Dr. Alvi, whom both found that the applicant did not suffer from a musculoskeletal impairment, and based on a balance of probabilities, is accounted for by her chronic pain.
54I appreciate that the applicant would like to further explore her physical abilities. However, I see little value in an assessment that would not account for her underlying, chronic pain, as already shown in Mr. Drinkwater's opinion or evidence of the FAE. Therefore, I do not see the assessment as reasonable or necessary.
Interest
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have found that the physiatry and psychological assessments are owing, interest is payable on those benefits.
ORDER
56The applicant is not entitled to the income replacement benefit for the disputed period, as she has not shown that she suffers a substantial inability to complete the essential tasks of her job, or that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
57The applicant is not entitled to the treatment plan for chiropractic services or to a functional abilities assessment, as she has not shown that the services are reasonable and necessary
58The applicant is entitled to the physiatry assessment and the psychological assessment; interest is also owing on these overdue assessments.
Released: April 13, 2023
Stephanie Kepman Adjudicator