Licence Appeal Tribunal File Number: 19-011883/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:
Amanda Cherriere
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Richard Startek, Counsel
Ryan Sullivan, Counsel
For the Respondent:
Kristofer Angle, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amanda Cherriere, the applicant, was involved in an automobile accident on May 5, 2017, 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, Aviva Insurance Company of Canada, 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 an income replacement benefit (“IRB”) in the amount of $238.51 per week from May 12, 2017 to date and ongoing?
ii. Is the applicant entitled to $1,331.90 for physiotherapy services, denied September 25, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3The issue of whether the applicant’s injuries are predominantly minor pursuant to s. 3 of the Schedule is no longer in dispute.
RESULT
4The applicant is not entitled to an IRB in the amount of $238.51 per week from May 12, 2017 to date and ongoing.
5The applicant is not entitled to physiotherapy services in the amount of $1,331.90.
6The applicant is not entitled to interest.
ANALYSIS
Income Replacement Benefit
7To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be 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.
8After 104 weeks, in order to receive payment for an 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.
9The applicant has not met her burden in proving that she meets either test, and she is accordingly not entitled to income replacement benefits.
10The applicant seeks IRBs in the amount of $238.51 per week, from May 12, 2017 to date and ongoing. The only evidence she relies on in support of her meeting either test is a report from Dr. Shahrokhnia, psychologist, dated November 2, 2020. This report does not actually comment on whether she suffers a substantial inability to perform the essential tasks of her employment. It appears to have been completed for the purposes of preparing a treatment plan recommending psychological treatment. The applicant has not provided me with an OCF-1, OCF-2, OCF-3, clinical notes and records, records from her employer, income tax documents, or any other documents that would assist her in establishing entitlement to IRBs.
11The applicant’s only submission with respect to why she cannot work is that she suffers from chronic pain and impairments which prevent her from lifting and standing. She states vaguely that she engaged in many activities before the accident that she is no longer able to do. She has not provided any evidence of her physical capabilities. She only relies on the psychological report of Dr. Shahrokhnia.
12The applicant reported to Dr. Shahrokhnia that she has been unable to return to work as a result of her physical injuries, pain, restrictions, and subsequent health complications such as the removal of her thyroid gland. Dr. Shahrokhnia did not comment on whether he believed she was able to work. Her self-report to a psychologist is not sufficient evidence that she meets the tests.
13The applicant also argues that the report of Dr. Shahrokhnia should be given a large amount of weight because he and others at his clinic have been treating her for her psychological injuries, whereas the s. 44 examiner only interviewed her once. She has not provided any records from the clinic so I have no way of assessing the veracity of this statement. In any event, it appears that Dr. Shahrokhnia’s report was prepared prior to the applicant attending the clinic for treatment (if she even did). I do not accept the applicant’s position that Dr. Shahrokhnia’s report should be afforded more weight.
14The rest of the applicant’s submissions largely focus on the eligibility test for non-earner benefits, not IRBs. She quotes from Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, a case dealing with non-earner benefits. She states that “the test for whether an Applicant suffers a complete inability to carry on a normal life was not applied with regard to the Insurer’s psychological examiner.” The s. 44 psychologist, Dr. Talebizadeh, of course was not asked to opine on this test, as she was not assessing the applicant’s eligibility for non-earner benefits.
15Instead, Dr. Talebizadeh applied the correct test for income replacement benefits and opined that from a psychological perspective, the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. The applicant has not provided any evidence to dispute this opinion.
16Further, the applicant states that the respondent has failed to properly assess her eligibility for IRBs. In support of that statement, she submits that the s. 44 psychiatrist, Dr. Kopyto, stated that “the disability period appears to be inconsistent with the diagnosis of the mechanism of injury”. In reality, Dr. Kopyto is not a psychiatrist, he is a general practitioner. He also did not say what the applicant alleges. That sentence is taken from a letter from the respondent, and was indicated as the reason a s. 44 assessment was required.
17Dr. Kopyto opined that the applicant does not suffer a substantial inability to perform the essential tasks of her employment as a direct result of the motor vehicle accident. The applicant does not take issue with any of the comments or conclusions made in Dr. Kopyto’s report.
18It is not enough for the applicant to simply state in her submissions that she is unable to work. She must provide objective medical evidence of a substantial inability to perform her essential tasks, and thereafter a complete inability to engage in any employment. I find that she has not met her burden for either test, and she is accordingly not entitled to an income replacement benefit.
Physiotherapy
19To 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.
20The applicant has not provided a copy of the OCF-18 in dispute. I agree with the respondent that the OCF-18 is of vital importance in determining whether the proposed treatment is reasonable necessary.1 I do not know what the goals of the treatment are, the particulars of the treatment being proposed, or the cost of the treatment.
21In any event, the applicant has failed to adduce any evidence of her physical condition as a result of the accident. Dr. Shahrokhnia is not qualified to opine on whether the applicant should attend physiotherapy, nor did he. Dr. Kopyto opined in his report that the proposed treatment plan was not reasonable and necessary as no further physical rehabilitation was indicated. The applicant has not contested that opinion or provided evidence to contradict it. She has not met her burden in proving that the treatment plan for physiotherapy is reasonable and necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
23The applicant is not entitled to an IRB in the amount of $238.51 per week from May 12, 2017 to date and ongoing.
24The applicant is not entitled to physiotherapy services in the amount of $1,331.90.
25The applicant is not entitled to interest.
Released: June 7, 2023
__________________________
Rachel Levitsky
Adjudicator
Footnotes
- N.H. v. Aviva Insurance Canada, 2018 CanLII 13181 (ON LAT)