Licence Appeal Tribunal File Number: 21-003604/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:
Jevon Wellington
Applicant
and
Belair Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Thusha Mayuran, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Jevon Wellington, the applicant, was involved in an automobile accident on May 20, 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, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 27, 2019 to date and ongoing?
ii. Is the applicant entitled to $2,269.34 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan denied February 7, 2020?
iii. Is the applicant entitled to $2,564.96 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan denied November 21, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to a non-earner benefit for the period in dispute;
ii. The applicant is not entitled to the treatment plans for physiotherapy services; and
iii. No interest is payable as no payments were overdue.
ANALYSIS
The applicant has not established entitlement to Non-Earner Benefits (“NEBs”)
4Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
5The applicant submits that he suffers from a complete inability to carry on a normal life, as a result of his accident-related physical and psychological impairments, and chronic pain. To establish his claim, he relies on the OCF-3, clinical notes and records (“CNRs”) of his family physician and diagnostic imaging of his spine.
6I find that the applicant has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life.
7The applicant has not provided any specific submissions or tendered any evidence of his pre-accident activities of daily living or demonstrated how his engagement in these activities has changed as a result of the accident. In his submissions, the applicant makes general statements that he is unable to do the activities he once depended on and did consistently prior to the accident. However, limited details are provided as to what these activities are.
8The applicant submits that he is now unable to work, and that he was forced to go on short-term disability (“STD”), then long-term disability (“LTD”), in the period post-accident. However, the applicant has not provided any of the STD or LTD files to corroborate these claims. Further, the OCF-1 and CNRs of his family physician indicate that the applicant returned to work post-accident. The applicant’s counsel also confirmed on December 3, 2019 that the applicant would not be seeking Income Replacement Benefits, as he had returned to work, although he was unable to work “some days”. While I do see intermittent references to the applicant stopping work for periods of time for various reasons, including asthma, without any of the STD or LTD files, I am unable to confirm why and when the applicant stopped working.
9Further, in his submissions, the applicant does not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare the applicant’s pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.
10Finally, the applicant did not direct me to any medical opinion from a treating physician that he suffers a complete inability to carry on a normal life. Although the OCF-3 prepared by Dr. Murray McCutcheon, chiropractor, identifies such an inability, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Further, the anticipated duration of this inability was identified as being 9-12 weeks. The CNRs of the applicant’s family physician also do not indicate any reports of the inability to complete his activities of daily living, or restrictions on his pre-accident activities. Finally, the respondent’s s.44 assessor Dr. Moolla found no evidence of a musculoskeletal impairment and that the applicant had full range of motion in his physical examination.
11The applicant points to his self-reports of pain as evidence that he could not genuinely “engage” in his pre-accident activities after the accident. However, where pain is the primary factor preventing an applicant from engaging in pre-accident activities, Heath requires the applicant to show that the pain practically prevents them from engaging in those activities. I find that the evidence and the applicant’s self-reporting do not meet this stringent test.
12On this basis, I find that the applicant has not established entitlement to an NEB for the period in dispute.
The applicant has not established entitlement to the treatment plans for physiotherapy services
13To 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.
14The applicant submits two treatment plans (“OCF-18s”) for physiotherapy services, submitted by Midland Wellness Centre on February 4, 2020 and November 19, 2019. Both OCF-18s had the same listed injuries and the same stated goals of pain reduction, increase in strength, increased range of motion, return to activities of daily living, return to pre-accident work activities and modified work activities. The respondent denied the OCF-18s on the basis of an insurer’s examination (“IE”) report of Dr. Moolla, who found that further facility-based treatment was not warranted, that the applicant had already had adequate rehabilitation therapy for his soft-tissue injuries and that the two treatment plans were not reasonable and necessary.
15I find that the applicant has not met his onus to prove that the OCF-18s for physiotherapy are reasonable and necessary.
16The applicant submits that both OCF-18s are reasonable and necessary, as he has continued to report physical and psychological impairments, and chronic back pain, post-accident. However, while I agree with the applicant that the CNRs of his family physician reflect ongoing psychological symptoms and diagnoses, I do not find that such psychological impairments are persuasive evidence on the issue of the reasonableness and necessity of physiotherapy treatment.
17The bulk of the applicant’s submissions on physical impairments necessitating ongoing treatment, relate to his back injuries. Post-accident diagnostic imaging has revealed mild to moderate bilateral sacroiliac degenerative joint disease, and disc bulges at L3/4 and L4/5. The applicant argues that this impairment, together with his family physician’s ongoing recommendations of physiotherapy treatment, meet the onus to prove the reasonableness and necessity of the physiotherapy treatment plans. However, I agree with the respondent’s submissions that the medical evidence is not clear as to whether the subject accident has caused the applicant’s back injury. The bulk of the imaging indicates degenerative changes. Although mild disc bulges or scoliosis of the thoracic spine is also noted, the applicant has not provided any medical opinion linking these injuries to the subject accident.
18The applicant concedes that in addition to the subject accident on May 20, 2019, he was also involved in two additional accidents on June 22, 2019 and June 28, 2019. Although the respondent submits that these subsequent accidents were the cause of the applicant’s back injury, the applicant contends that it was the subject accident which caused these impairments. However, a review of the CNRs of the applicant’s family doctor, indicates that after the subject accident and prior to the subsequent accidents, the applicant did not attend at a hospital or report any back pain. In doctor’s visits from May to July 2019, the applicant reported only right knee and leg pain and headaches.
19However, after the two subsequent June 22 and 28, 2019 accidents, the applicant’s pain complaints changed significantly. In an August 19, 2019 CNR entry, the applicant reported to his doctor that he had another accident on June 28, 2019 and attended at the emergency room, where he obtained x-rays of his back and a CT scan of his head. I note that from this point onward, the applicant’s pain complaints focused in large part on his back. As such, I agree with the respondent that the applicant has not established that the subject accident caused his impairments to his back. However, even if I accept that the applicant’s back impairments were caused by the accident, I find that the applicant has still not adduced sufficient evidence to establish that the proposed physiotherapy treatment is reasonable and necessary to treat his physical impairments and chronic back pain.
20In his submissions, the applicant appears to be arguing that since he still suffers from impairments and pain years after the subject accident, correspondingly, he should still continue to receive medical treatment. However, to establish the reasonableness and necessity of the OCF-18s in dispute, the applicant must prove not only that he suffers from ongoing accident related impairments, but also that the treatment goals are reasonable, that they are being met to a reasonable degree and that the overall cost of achieving them are reasonable.
21The applicant has not provided any specific submissions or evidence as to the efficacy of ongoing physiotherapy treatment and how the treatment plans will meet their stated goals. Although the applicant had previously attended at physiotherapy treatment, no treatment records or progress reports were provided from the treating clinic, to show what type of treatment was provided or what progress he has made from prior treatment. The OCF-18s themselves do not have additional information as to the type of treatment to be provided. They also call into question whether the stated goals would be met by the recommended treatment. In the OCF-18 dated January 30, 2020, in Part 9, the form notes that if this was a subsequent treatment plan, “what was the applicant’s improvement at the end of the previous plan”? The OCF-18 does not note any improvement, rather, it states “pt reports there is no change in pain”. As such, the applicant has not led any evidence as to the benefits of ongoing physiotherapy treatment or to refute Dr. Moolla’s findings that further facility-based treatment was not warranted.
22The burden of proof rests with the applicant. Without specific submissions or sufficient medical evidence establishing that the goals of treatment were being met to a reasonable degree, I am unable to find that the applicant has established that the OCF-18 in dispute is reasonable and necessary.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
ORDER
24The applicant has not demonstrated that he is entitled to NEBs or that the disputed OCF-18s are reasonable and necessary. Accordingly, no interest is payable.
25The application is dismissed.
Released: May 30, 2023
Ulana Pahuta
Adjudicator