Licence Appeal Tribunal File Number: 20-011528/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:
Janet Valdivia
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Helen Friedman, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
BACKGROUND
1Janet Valdivia, the applicant, was involved in an automobile accident on September 26, 2018, and sought benefits from The Co-operators General Insurance Company, the respondent, pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016)1 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues to be decided in this hearing are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) from October 3, 2018 to date and ongoing, and if so, in what amount?
ii. Is the applicant entitled to $1,247.72 ($3,243.04 less $1,995.32 approved) for psychological services, proposed by Complete Rehab Centre in a treatment plan (“OCF-18”) submitted May 8, 2019?
iii. Is the applicant entitled to $2,337.73 for physiotherapy services, proposed by Complete Rehab Centre in an OCF-18 submitted June 6, 2019?
iv. Is the applicant entitled to $1,546.13 for physiotherapy services, proposed by Complete Rehab Centre in an OCF-18 submitted December 12, 2019?
v. Is the applicant entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in an OCF-18 submitted June 7, 2019?
vi. Is the applicant entitled to $220.18 for the funding of medication submitted on a claim form (“OCF-6”) on July 20, 2020?
vii. Is the applicant entitled to $78.24 for the funding of medication submitted on an OCF-6 on May 8, 2020?
viii. Is the applicant entitled to $1,853.78 for chiropractic and massage treatment services proposed by Complete Rehab Centre in an OCF-18 submitted on October 15, 2020?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. the applicant has established entitlement to pre-104 week IRBs, however, the amount of pre-104 week IRBs is nil;
ii. the applicant has not established entitlement to post-104 week IRBs;
iii. the applicant is entitled to the OCF-18s submitted June 6, 2019 and December 12, 2019 for physiotherapy services, plus interest in accordance with s. 51 of the Schedule;
iv. the applicant is entitled to the OCF-18 for an orthopaedic assessment, plus interest in accordance with s. 51 of the Schedule;
v. the applicant is not entitled to the remaining treatment plans in dispute, as the applicant has not established that they are reasonable and necessary; and
vi. the applicant is not entitled to the amounts claimed in the two OCF-6 claim forms, as the applicant has not established that they are reasonable and necessary.
income replacement benefit
The applicant has established entitlement to Pre-104 Week IRBs
4To 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.
5The applicant submits that at the time of the accident, she was self-employed as the owner and operator of a dump truck. She contends that as a result of the accident, she has developed neck pain, chronic low back pain and that the accident had exacerbated a prior left shoulder injury. As a result, the applicant argues that she is unable to sit and drive for long periods of time, making her unable to continue her employment.
6The respondent disputes the applicant’s claim, on the basis of its s. 44 insurer’s examination (“IE”) assessments. The initial physiatry IE of Dr. Ko, found no evidence of any ongoing organic pathology, and only soft tissue sprains and strains. A subsequent physiatry IE by Dr. Khan and a psychological IE by Dr. Seon, both found that the applicant did not suffer from a substantial inability to perform the essential tasks of her employment.
7I find that the applicant has adduced sufficient evidence to establish that as a result of the accident she suffered a substantial inability to perform her employment duties of a dump truck driver.
8Although the respondent submits that the applicant’s current impairments are largely unrelated to the subject accident, I find that the medical evidence establishes that the accident has led to increased chronic pain and exacerbated a previous shoulder impairment. I agree with the respondent that the pre-accident clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Alexov indicate that the applicant was involved in a prior MVA in 2010 which led to the development of chronic pain. The CNRs further indicate that in June 2017 the applicant fell and sustained a partial tear of the left shoulder cuff and was off work for approximately six months, until November 2017.
9However, I note that even with these impairments and pain complaints, the applicant was still able to return to work in November 2017 and was working full-time at the time of the subject accident. Further, the CNRs of Dr. Alexov indicate that the type and frequency of the applicant’s pain complaints changed substantially after the subject accident. The pre-2018 CNRs of Dr. Alexov submitted by the respondent, indicate limited complaints of chronic low back pain. However, after the subject accident, the applicant consistently reported low back pain, at times radiating, in addition to increased neck pain and aggravated left shoulder pain. Dr. Alexov also consistently noted that given these impairments, the applicant was unable to continue working due to the prolonged driving and sitting her employment required.
10I further find the s. 25 orthopedic assessment of Dr. Bhargava to be persuasive. Dr. Bhargava diagnosed the applicant with chronic pain of the lumbar and cervical spine and an exacerbation of the left shoulder rotator cuff tear, with impairment in flexion and abduction. Dr. Bhargava found the subject accident to be the direct cause of the applicant’s neck and lower back pain and that it materially contributed to her left shoulder pain. Due to the applicant’s limitations in prolonged sitting, reaching, carrying or lifting, and the fact that her job required prolonged sitting and driving, Dr. Bhargava found that the applicant would suffer from a competitive disadvantage in the workforce. I find that Dr. Bhargava’s findings are corroborated by the CNRs of Dr. Alexov.
11When comparing the s. 25 assessment of Dr. Bhargava to the respondent’s s. 44 assessments, I prefer the report of Dr. Bhargava. Neither of the respondent’s s. 44 assessors addressed the issue of chronic pain and its effect on the applicant’s ability to complete the tasks of her employment.
12While the respondent’s physiatry assessor Dr. Khan found no significant physical impairment to the neck, mid or low back which would prevent her return to work, Dr. Khan also noted the applicant’s high pain complaints. Further, although Dr. Khan found that it was “unclear” whether the applicant’s left shoulder complaints were accident-related, I note that the respondent’s previous physiatry assessor Dr. Ko, found in March 2019 that the accident had exacerbated the sprain and strain of the left trapezius.
13As such, I find that the level of impairment, as reviewed above, caused the applicant a substantial inability to perform the essential tasks of her pre-accident employment.
Duration of Pre-104 Week IRBs
14The respondent submits that as the applicant returned to full-time work between April 22, 2019 to September 25, 2019, she is not entitled to IRBs for this five month period. It submits adjustor’s log note entries and correspondence indicating that the applicant’s counsel confirmed that she had returned to work at full hours and duties on April 21, 2019, until September 25, 2019. The respondent further submits surveillance reports indicating that its investigator had observed the applicant in the course of her employment on May 7, 2019 between the hours of 9am and 6pm.
15I agree with the respondent that the applicant is not entitled to pre-104 week IRBs for the period of April 22, 2019 to September 25, 2019, due to her temporary return to work. The applicant did not provide any evidence or reply submissions to refute the respondent’s evidence that she returned to full-time employment for an approximate five-month period. As such, this period will not be included in the calculation of pre-104 week IRBs.
Quantum of Pre-104 Week IRBs
16I find that the applicant has not met her evidentiary burden to prove entitlement to payment of IRBs above what the respondent has already paid.
17IRB payments are based on the applicant’s income as reported to the Canada Revenue Agency, pursuant to section 4(5) of the Schedule. The payments are based on the insured’s gross annual income from employment or self employment. Generally speaking, weekly IRB payments are 70% of the insured’s gross weekly employment income. The applicant’s employment status impacts how the calculation is made. The calculation for employed persons is based on lost income. Whereas the calculation for self-employed persons is based on the weekly loss from self-employment.
18Both the applicant and the respondent have submitted accounting reports for the purpose of calculating the amount of IRBs owed. The applicant submits a report from Great Oak VFA (“Great Oak”) and the respondent submits a report from Matson Driscoll & Damico Ltd. (“MDD”). Both reports confirm that the applicant was self-employed as an owner and operator of J Power Transport Inc. and that her business was operating at a net loss prior to the accident. As such, the applicant would only be entitled to the additional loss incurred as a result of the accident. Both reports further confirm that no IRBs are payable for the period of October 3, 2018 to December 31, 2018, or for the period of January 1, 2020 to December 31, 2020, as there was no additional loss incurred in those years as a result of the accident. Rather, the only period in dispute for pre-104 week IRBs is from January 1, 2019 to December 31, 2019.
19The applicant claims that she is entitled to IRBs in the amount of $31,598.93 for the 2019 year, based on the Great Oak report. The respondent disputes this amount and contends that the amount of IRBs owed for the 2019 year is nil. As the respondent had already paid $5,475.22 in IRBs, it argues that it has overpaid the applicant IRBs, although it is not requesting a repayment.
20I agree with the respondent’s submissions that the Great Oak report contained a number of errors in calculating the quantum of IRBs owed for 2019. Firstly, the applicant’s accounting report calculated the IRB entitlement based on the weekly earnings for the last 52-week period prior to the accident. This amount was calculated to be a loss of $19,547.98 for the period of September 27, 2017 to September 25, 2018, which was a pre-accident 70% weekly loss of $263.15. However, I agree with the respondent’s submissions and cited caselaw, that as the applicant was self-employed, pursuant to s. 4(3) of the Schedule, the applicant’s employment income or loss should be calculated according to the last completed taxation year, and not the last 52-week period prior to the accident. Using this calculation, the loss for the 2017 taxation year was $58,387.10, which would be a pre-accident 70% weekly loss of $785.98.
21Secondly, the Great Oak report included the period from April 22, 2019 to September 24, 2019 in its IRB calculation. However, as previously noted the applicant had returned to work for that period of time. As such, I agree with the respondent that the applicant was not entitled to IRBs for this period of time.
22When correcting for these errors, 70% of the weekly losses incurred in 2019 does not exceed 70% of the pre-accident weekly loss of $785.98. As such the amount of IRBs owing for 2019 would be nil. The applicant has not established that any IRB payment is outstanding above what the respondent has already paid.
The applicant has not established entitlement to Post-104 Week IRBs
23To receive payment for post-104-week IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
24The applicant has not provided any submissions or evidence of entitlement to post-104 week IRBs. The applicant has only provided submissions for entitlement to IRBs for the period from January 1, 2019 to December 31, 2019 and has identified only this period as an issue in dispute. Without any submissions on post-104 week IRBs I am unable to address this issue.
25Further I note the respondent’s submissions that the applicant appears to have returned to her pre-accident employment. The respondent submits surveillance reports indicating that the applicant had returned to her full-time employment as a dump truck operator. The report indicates that the applicant was observed operating her dump truck in a full-time manner over the course of four days in January 2021 and for three days in January 2022. The applicant has not provided any reply submissions to refute the respondent’s argument that she has returned to her pre-accident employment.
treatment plans
26To 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.
The applicant has not established entitlement to the outstanding balance of the OCF-18 for psychological services
27The applicant had submitted an OCF-18 dated May 3, 2019 in the amount of $3,243.04 for twelve 1.5 hour sessions of psychological treatment. The respondent partially approved the plan in the amount of $1,995.32, for twelve one hour sessions instead.
28I agree with the respondent that the onus is on the applicant to establish why the longer treatment sessions are reasonable and necessary. The respondent partially approved the psychological treatment for one hour, on the basis of its psychological IE assessor Dr. Seon’s findings that the applicant would benefit from twelve one hour psychotherapy sessions. The respondent also noted that while the applicant’s psychological assessor also found that the applicant would benefit from twelve sessions of psychological treatment, he did not specify the length of the sessions.
29The applicant has not provided any specific submissions on the issue, but rather, makes a general statement that she has not yet reached maximum medical recovery. In the absence of evidence as to why one hour long sessions are not sufficient, I find that the applicant has not met her onus to prove that the additional half hour per session is reasonable and necessary.
The OCF-18s dated June 5, 2019 and December 5, 2019 for physiotherapy and massage services are reasonable and necessary
30The applicant had submitted two OCF-18s dated June 5, 2019 and December 5, 2019 for physiotherapy and massage services. Both OCF-18s had the same stated goals of pain reduction, increase in strength, increased range of motion and increased fitness levels.
31The respondent denied both treatment plans on the basis of two physiatry IE assessments, which found that the applicant had reached maximum medical recovery with respect to her physical accident-related injuries and that further facility based treatment was not warranted. The respondent further submits that the applicant has not received any benefit from previous courses of treatment.
32I find that the applicant has established that the proposed physiotherapy and massage treatment is reasonable and necessary.
33The CNRs of Dr. Alexov and the treatment records of Complete Rehab Centre indicate that at the time the OCF-18s were submitted, the applicant consistently reported ongoing physical impairments and chronic pain. The applicant’s family physician continued to recommend physical therapy throughout 2019. The applicant’s orthopaedic assessor, Dr. Bhargava, further recommended that the applicant continue such treatment, along with his additional recommendations of a chronic pain assessment, an MRI of the shoulder, a referral to an orthopaedic surgeon and possible cortisone injections.
34I note the respondent’s submissions that the evidence indicates that the applicant did not sustain any significant or sustained benefit from previous treatment, and that the records of Complete Rehab indicate that the applicant’s pain complaints increased from pre-accident baseline. However, the applicant did report to multiple assessors that she found the previous physical treatment, such as massage and physiotherapy, helpful in a temporary reduction of her pain symptoms.
35Further, the treatment plans in dispute were not being submitted years post-accident, but eight months and just over a year after the MVA. I note as well that the June 5, 2019 OCF-18 was submitted as the applicant was attempting to return to her job as a dump truck driver. Indeed, this OCF-18 explicitly noted that while the applicant reported some improvement with facility based care, she had been trying to increase her activity levels which was leading to increased pain and dysfunction. As such, at the time the OCF-18s were submitted, I find that it would be reasonable and necessary to assist the applicant in the stated goal of pain reduction, to support her attempt to return to work. While the respondent has raised credible arguments about the long-term benefits of ongoing facility-based care, the applicant has provided sufficient evidence that during the period of eight months to just over a year post-accident, further treatment was reasonable and necessary to support an attempt to return to work.
The OCF-18 for an orthopaedic assessment is reasonable and necessary
36I find that the applicant has established that the orthopaedic assessment proposed in the OCF-18 dated June 5, 2019, is reasonable and necessary.
37The respondent disputes the applicant’s claim, submitting that its physiatry IE assessor confirmed that there was no organic pathology and that further examinations were not warranted. It further notes that the applicant’s family physician Dr. Alexov did not order any post-accident diagnostics or make a referral for an orthopaedic assessment and that such a referral could have been completed under OHIP.
38However, I accept that the applicant has suffered from ongoing impairments and increased pain post-accident, which has impaired her functioning and ability to perform her employment. Further, the CNRs of Dr. Alexov indicate the pre-accident partial tear of the left shoulder cuff and post-accident aggravation of the left shoulder, along with chronic, at times radiating, back pain, which warrant further investigation. Although the respondent disputes that the left shoulder pain was caused by the subject accident, one of its physiatry assessors, Dr. Ko, found that the accident had exacerbated the sprain and strain of the left trapezius.
39The applicant incurred the proposed assessment with Dr. Bhargava, who diagnosed the applicant with an exacerbation of an underlying tear of the left shoulder and chronic pain. A plan of care was proposed, including recommendations of a chronic pain assessment, an ultrasound and MRI of the left shoulder, a referral to an orthopaedic surgeon and possible cortisone injections.
40I am not persuaded by the respondent’s argument that the cost of this assessment is not reasonable and necessary because Dr. Alexov could have made a referral for an orthopaedic assessment within the OHIP system. Under s. 47(2) of the Schedule, the onus is on the respondent to advance submissions or some evidence that establishes the orthopaedic assessment was reasonably available to the insured under OHIP. The burden would then shift to the insured to prove that the benefit was not reasonably available: G.T. v Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) (Reconsideration) at para 27. In G.T. the Executive Chair made it clear that for this argument to prevail, there must be evidence, not just a general assertion, that OHIP would have covered this cost. The respondent has failed to provide any specific submissions or evidence in support of this claim.
41As such, I find that the applicant has adduced sufficient evidence that the proposed orthopaedic assessment is reasonable and necessary.
The applicant has not established entitlement to the OCF-6 claim forms for medication
42The applicant had submitted two OCF-6s dated July 28, 2020 and May 8, 2020 for various medications. The respondent submits that these medical expenses are not payable pursuant to s. 47(2) of the Schedule, as the cost of the prescription medication is reasonably available to the applicant under another plan.
43I agree with the respondent. The respondent has submitted correspondence from Canada Benefit Providers, which indicates that the applicant had coverage for prescription medication since November 1, 2019. The applicant has not provided any reply submissions or advanced any argument that these medications were not available to her under this plan. As such, I agree with the respondent that the OCF-6s in dispute are not payable pursuant to s. 47(2) of the Schedule.
The applicant has not established entitlement to the OCF-18 submitted October 15, 2020 for chiropractic and massage treatment
44The applicant submitted an OCF-18 on October 15, 2020, for sixteen sessions of physiotherapy treatment and six sessions of massage treatment. The respondent submits that this treatment plan is not reasonable and necessary, as it arose not due to any accident-related impairments, but due to the applicant’s October 2020 fall down the stairs.
45I agree with the respondent. The CNRs of Dr. Alexov indicate that on October 14, 2020, the applicant reported slipping and falling on the stairs a week earlier. She reported pain on the right side of her body, some numbness, and limited range of motion due to pain. Dr. Alexov recommended physical therapy. The next day the OCF-18 in dispute was submitted. Therefore, I agree with the respondent that the medical evidence establishes that this OCF-18 is not for accident-related impairments and as such, is not reasonable and necessary.
Interest
46The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 for the orthopaedic assessment and the two OCF-18s for physiotherapy services.
order
47For the reasons outlined above, I find that:
i. the applicant has established entitlement to pre-104 week IRBs, however, the amount of pre-104 week IRBs is nil;
ii. the applicant has not established entitlement to post-104 week IRBs;
iii. the applicant is entitled to the OCF-18s submitted June 6, 2019 and December 12, 2019 for physiotherapy services, plus interest in accordance with s. 51 of the Schedule;
iv. the applicant is entitled to the OCF-18 for an orthopaedic assessment, plus interest in accordance with s. 51 of the Schedule;
v. the applicant is not entitled to the remaining treatment plans in dispute;
vi. the applicant is not entitled to the amounts claimed in the two OCF-6 claim forms.
Released: June 30, 2023
__________________________
Ulana Pahuta
Adjudicator
Footnotes
- O. Reg. 34/10 as amended.