Licence Appeal Tribunal File Number: 21-007975/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:
Sameen Rawal
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Deborah Neilson
APPEARANCES:
For the Applicant:
Sameen Rawal, Applicant Maria Makarova, Paralegal
For the Respondent:
Jonathan Charland, Counsel
HEARD: In Writing
June 1, 2023
OVERVIEW
1Sameen Rawal, the applicant, was involved in an automobile accident on December 14, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant claims entitlement to income replacement benefits, medical and rehabilitation benefits, cost of assessments plus the cost of an accountant’s report. The respondent denied the applicant’s claims for medical and rehabilitation benefits because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. (“MIG”). The applicant claims he has chronic pain and a psychological impairment that take him out the MIG.
3Regardless of whether the MIG applies, I must determine whether the applicant is entitled to IRBs and the cost of an accountant’s report. The applicant claims that in addition to meeting the test for IRBs, he is entitled to IRBs based on the respondent’s technical failure to comply with its notice requirements. The respondent submits that it is not required to pay for the accountant’s report as it was not technically prepared for a purpose under the Schedule.
ISSUES
4The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to $1,995.33 for a psychological assessment at Alma Rehab proposed in a treatment plan OCF-18 denied on March 16, 2021?
iii. Is the applicant entitled to $3,341.87 for a psychological treatment, from Alma Rehab proposed in a treatment plan denied on May 12, 2021?
iv. Is the applicant entitled to $3,058.75 for physiotherapy from Alma Rehab proposed in a treatment plan denied on April 26, 2021?
v. Is the applicant entitled to an income replacement benefit of $400.00 per week from December 21, 2020 to March 15, 2021?
vi. Is the applicant entitled to $2,825.00 for an IRB calculation report, proposed by S & T Accounting Firm in a treatment plan/OCF-18 (“plan”) denied on February 8, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
5The case conference Order states that IRB was being claimed to date but that it will be limited to the time that the applicant returned back to work. The applicant’s submissions state the IRB is claimed from December 21, 2020 to March 15, 2021.
RESULT
6The applicant has proven that he sustained a psychological impairment as a result of the accident that takes him out of the MIG. He is entitled to the cost of the psychological assessment, most of the psychological treatment claimed, physiotherapy, IRBs from February 8 to March 3, 2021, the cost of an accountant’s report and interest. He is not entitled to a Reg.664 award.
PROCEDURAL ISSUES
7The applicant asked that the respondent’s submissions be struck in their entirety because it exceeds the 15 page limit for submissions ordered at the case conference. I decline to do so for the following reasons.
8The respondent’s submissions are 16 pages long. However, half of the first page is taken up by a style of cause and the 16th page is also only half a page long, consisting of a total of 9 lines. If the respondent had provided the style of cause in the same manner as the applicant, as a separate cover sheet, the respondent’s submissions would be the same length as the applicant’s. Therefore, there is no advantage to the respondent nor any prejudice to the applicant because of the length of the respondent’s submissions. There is, however, significant prejudice to the respondent if its submissions are struck. For these reasons the applicant’s request is denied.
ANALYSIS
The applicant’s psychological impairments take him out of the MIG
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
10An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2) of the Schedule, that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.
11The applicant submits that he has both a psychological injury and chronic pain that take him outside of the MIG. The respondent submits that the evidence does not support the applicant’s submissions and that he has failed prove on a balance of probabilities that he sustained injuries from the accident that take him out of the MIG. I find that the applicant has a psychological impairment that takes him out of the MIG for the following reasons.
The applicant sustained a psychological injury
12The applicant submits that because psychologist Dr. Konstantinos Papazoglou diagnosed him with an Adjustment Disorder (with mixed anxiety and depressed mood) in his report dated April 27, 2021, the applicant should be taken out of the MIG. The respondent submits that the evidence does not support a finding that the applicant sustained a psychological impairment as a result of the accident that justifies removal from the MIG and relies on the insurer’s examination reports conducted under s.44 of the Schedule (“IEs”) of Dr. Arnold Rubenstein, psychologist, dated May 25 and 28, 2021.
13The respondent relies on Cai v Allstate Canada, 2022 CanLII 93720 (ON LAT), which held that an insured person must show he has an actual psychological impairment and not just post-accident sequelae. I agree with this reasoning given the MIG states that treatment provided within the MIG may include intervention for psycho-social issues and advice regarding hurt versus harm. The allowance for this type of treatment within the MIG is a recognition that there may be psychological sequelae arising from the soft tissue injuries that do not take an insured person out of the MIG.
14The respondent submits that the following evidence relied upon by the applicant does not prove that he has a psychological impairment but are indicia of mere sequelae:
i. The applicant had three counselling sessions with a social worker reporting he was doing well, he was okay, was looking for work and was bored;
ii. Dr. Saxena, family physician, noted that the applicant received counselling, but Dr. Saxena did not document any contemporaneous psychological symptoms, assessment or provide an actual diagnosis;
iii. Dr. Singh reported a psychological impairment in his disability certificate, but as a chiropractor, he is not qualified to make such a diagnosis;
iv. Dr. Papazoglou’s opinion should be given little weight because he did not review any clinical notes or records or administer any psychometric testing with validity scales.
15Despite the respondent’s submissions, I find that the applicant has satisfied his onus and proven that he sustained a psychological impairment as a result of the accident that takes him out of the MIG. A review of the records of the applicant’s counsellor, Sharlene Gumbs, social worker, discloses that, despite his comments about being bored or doing well or okay, the applicant had psychological complaints. His complaints of frustration and anxiety driving are reported in Ms. Gumbs’ January 25, 2021 report; concentration difficulties in her January 11, 2021 note; fear of driving and concerns of ability to work in the January 18, 2021 note; and constant thinking of money and what to do next in the May 25, 2021 notes.
16The respondent’s submission that the first and only complaint of psychological issues to his family physician was on May 10, 2021 when the applicant reported sleep difficulties is not persuasive. Dr. Puja Saxena, the applicant’s family physician, reported to whom it may concern on March 10, 2021 that the applicant had increased anxiety and symptoms of PTSD (which usually stands for post-traumatic stress disorder). This note is documentation of contemporaneous psychological symptoms that refutes the respondent’s submission.
17The respondent submits there is no causal link between the applicant’s sleep difficulties and the accident. I disagree as he clearly advised Dr. Papazoglou that he wakes up frequently due to pain and discomfort and has nightmares about automobile accidents and other life threatening situations. His poor interrupted sleep contributed to fatigue, low energy and his poor mood. Because of his mood, he was socially isolating to avoid arguments with family members.
18I agree with the respondent that, as a chiropractor, Dr. Singh is not qualified to diagnose the applicant with psychological impairments. However, he is able to record what the applicant tells him. Accordingly, Dr. Singh made note of a psychological issue on the disability certificate, which supports the applicant’s submission that he had psychological complaints at the time. This is further supported by a clinical note from Alma Rehab dated December 14, 2020 that notes psychological trauma. Given this evidence, I find the applicant’s submission that he consistently voiced psychological complaints to his treatment providers more persuasive than the respondent’s submissions.
19The respondent submits that the fact the applicant was able to drive thousands of kilometres since the accident contradicts a diagnosis of driving anxiety. I am unable to find, in the absence of any evidence that a person cannot drive a vehicle if they have driving anxiety, that this is an inconsistency.
20The respondent submits that Dr. Rubenstein’s report should carry more weight than Dr. Papazoglou’s because Dr. Rubenstein found significant validity concerns such that the scores on various psychometric tests could not be relied upon to support a psychological diagnosis. However, on April 21, 2021, Dr. Papazoglou administered the Pain Patient Profile (“P3”) which contains some validity scales, and the Rey 15 item memory test, which measures test taking effort and symptom validity. Dr. Papazoglou ‘s opinion was that the applicant approached both tests in an honest manner and that there was no indication of malingering.
21I agree with the applicant that the evidence supports that he has a psychological impairment from the accident given Dr. Papazoglou’s diagnosis. Dr. Rubenstein could not make a diagnosis of any mental disorder because the applicant’s test results on the SIMS on May 11, 2021 were consistent with symptom magnification. Dr. Rubenstein had a copy of Dr. Papazoglou’s report, but did not state that Dr. Papazoglou’s diagnosis was invalid or incorrect at the time that he made it or that the SIMS is a more accurate test than the Rey 15 test. Given that Dr. Rubenstein came to a different conclusion than Dr. Papazoglou, some explanation for why his opinion was different was called for if he disagreed with Dr. Papazoglou. Since none was provided, I can only conclude that Dr. Rubenstein did not disagree with Dr. Papazoglou’s opinion at the time that it was given.
22The respondent submits that Dr. Rubenstein reviewed a number of clinical records and therefore I should give little weight to Dr. Papazoglou’s opinion as he did not have those records. I am unable to do so given that Dr. Rubenstein made no comment about the applicant’s clinical notes and records other than he reviewed them. He did not ask the applicant about his pre-accident history, unlike Dr. Papazoglou. There is no record of pre-accident psychological problems, which is what the applicant disclosed to Dr. Papazoglou. This lends further support to Dr. Papazoglou’s opinion that the applicant’s post-accident psychological condition is accident related.
23I find that Dr. Rubenstein’s failure to explore the applicant’s pre-accident medical history is a significant oversight that lends less weight to his report. Further, since Dr. Rubenstein was very specific about the timing of his opinion and he did not critique Dr. Papazoglou’s opinion or even mention it, I have no reason not to accept Dr. Papazoglou’s opinion that the applicant had an Adjustment Disorder in April 2021 as a result of the accident. Just because Dr. Rubenstein could not make a diagnosis five months post accident, that does not render Dr. Papazoglou ’s diagnosis a nullity. I find that even if the Adjustment Disorder resolved by the time Dr. Rubenstein saw the applicant, it was caused by the accident and takes him out of the MIG.
The applicant's chronic pain does not take him out of the MIG
24The applicant submits that as a result of the accident he has chronic neck, shoulder and back pain. The only evidence he relies on in support of his claim is Dr. Saxena’s letter March 10th, 2021 letter. Dr. Saxena stated the applicant has chronic neck shoulder and back pain as a result of the accident that took place three months earlier.
25Chronic pain alone does not take an insured person out of the MIG: M.J. v. The Dominion of Canada General Insurance Company, 2020 CanLII 45482 (ON LAT) and Barroilhet v. Aviva General Insurance, 2021 CanLII 43539 (ON LAT). Pain is sequelae of soft tissue injuries. It is only if an insured person has chronic pain syndrome, which is not the case here, or has chronic pain that is well beyond the 3 to 6-month post-accident period that has an adverse effect on his well being or is functionally disabling that the pain is not mere sequelae. The onus is always on the applicant to show on a balance of probabilities that the chronic pain is of a severity that it takes him out of the MIG. One comment by Dr. Saxena less than three months post-accident that the applicant has chronic neck shoulder and back pain does not meet that onus. In any event, the applicant’s psychological injuries take him out of the MIG.
The cost of a psychological assessment is reasonable and necessary
26The applicant seeks entitlement to a psychological assessment at a cost of $1,995.33 recommended by Dr. Papazoglou in a treatment plan dated February 23, 2021. The respondent is required to pay for all reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan or for preparing a disability certificate under s.25 of the Schedule. The test for entitlement to the cost of an examination does not require the applicant to prove that he has a psychological impairment caused by the accident. It is whether there is a possibility that he has a psychological impairment caused by the accident. If so, the applicant must show on a balance of probabilities that an assessment is necessary under s.25 of the Schedule for the review of or preparation of a disability certificate or treatment plan and that the fees charged for that assessment are reasonable.
27Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”). Under s.25(5)(a) an insurer is not required to pay more than $2,000 plus HST for an assessment.
28Accordingly, the determination of whether the psychological assessment recommended by Dr. Papazoglou is payable can be broken down to a two-part analysis:
i. Is Dr. Papazoglou’s assessment necessary under s.25 of the Schedule ; and
ii. Are the fees charged for the psychological assessment reasonable?
29It is well known that a psychologist will not embark on treatment without first assessing a patient. I determined that the applicant sustained a psychological impairment as a result of the accident and, accordingly, the applicant clearly has some semblance of a psychological impairment. The goals of the treatment plan were to address pain management, trauma symptoms, anxiety, depression, and driving anxiety. These are reasonable goals in light of the applicant’s psychological impairments. Accordingly, I find the assessment was necessary.
30The respondent submits that it is unable to determine whether the hourly fees charged are within $149.61 per hour maximum for psychologists set out in the Professional Services Guideline. As I set out in 16-004031/AABS v. State Farm Insurance Company, 2018 CanLII 2312 (ON LAT) and adopted in 18-001128 v Aviva Insurance Canada, 2019 CanLII 58164 (ON LAT), it is not sufficient to simply claim the $2,000 maximum allowable amount for a cost of examination under the Schedule without additional detail or a breakdown. There is no breakdown of the hours required to assess the applicant listed on the treatment plan. All that was given was a block fee for the cost of the assessment.
31The applicant submits that the assessment was conducted by a psychologist and not a psychometrist. However, this does not provide me with any information as to the hourly fee charged by Dr. Papazoglou or the number of hours required to conduct the assessment. This is the minimum evidence it would take to persuade me whether the fee was reasonable as it would allow me to determine whether the hourly fee charged was within the Professional Services Guideline in accordance with s.25(3) of the Schedule.
32Despite the respondent’s submissions, I have a second treatment plan before me dated May 3, 2021, which is also in issue. It states that Dr. Papazoglou’s fees are $149.61 per hour, which is within the maximum payable under the Professional Services Guideline. This means Dr. Papazoglou’s assessment and report preparation would take 13.34 hours. I find this is not unreasonable given that there were seven psychometric tests conducted, which require time to supervise and analyse, in addition to the time required to conduct the interview and write the report. Further, the total cost does not exceed the maximum $2,000 payable for any assessment. For these reasons the applicant is entitled to the cost of the assessment, which is both reasonable and necessary.
The applicant is entitled to psychological treatment
33To 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.
34The applicant is seeking entitlement to psychological treatment recommended by Dr. Papazoglou in a treatment plan dated May 5, 2021 for a total mount of $3,341.87 for twelve sessions at a cost of $224.42 per hour. Although the treatment plan states the fee is $224.42 per hour, this is actually for each one and a half hour session, which means the hourly fee is $149.61 per hour. The hourly fee charged is within the Professional Services Guideline.
35The goals of the treatment plan were to reduce psychological symptoms, improve the applicant’s emotional status and optimize his coping with pain. These are all legitimate goals. However, the respondent submitted that by the time he was seen by Dr. Rubenstein on May 11, 2021, the applicant’s subclinical issues had resolved with the counselling he received from Ms. Gumbs. Dr. Rubenstein determined at that time that the applicant no longer had a psychological impairment based on his invalid responses on psychometric testing.
36Dr. Rubenstein’s determination was based, not only on invalid psychometric testing, but also on the applicant’s demeanor and presentation. At that time, the applicant advised that he was experiencing financial stress. He displayed an average level of depression and above average level of anxiety on one of the psychometric tests. However, because of symptom magnification, Dr. Rubenstein could not validly interpret the result of the applicant’s other psychometric testing.
37The applicant had a Hindi translator with him when he was assessed by Dr. Rubenstein. There was no indication that the SIMS administered was in Hindi. No explanation of what effect the translation of the testing to Hindi may have had on the validity results was provided by Dr. Rubenstein. Nor did he state what the applicant’s scores were on the SIMS or what he meant by them being significantly elevated. Accordingly, without some further explanation, I am unable to give much weight to his opinion that the applicant no longer had any psychological impairment by May 11, 2021.
38Dr. Rubenstein’s opinion was that the applicant did not sustain any diagnosable psychological impairment as a direct result of the accident. However, for the applicant to be entitled to medical benefits, he does not have to show that psychological treatment was necessary as a direct result of the accident, only that it was necessary as a result of the accident (my emphasis). Dr. Rubenstein’s application of a much stricter test for determining if the applicant sustained a psychological impairment that necessitated treatment is another reason why I cannot give more weight to his opinion.
39It was Dr. Papazoglou’s opinion that the applicant required psychological counseling. Since Dr. Rubenstein provided no opinion on psychological treatment, only on whether a psychological assessment was reasonable and necessary, I am not persuaded that I should disregard Dr. Papazoglou’s opinion and recommendation.
40The respondent submits that the hour and a half sessions recommended by Dr. Papazoglou are not reasonable, but has provided no evidence of why. Submissions are not evidence. Accordingly, I have no reason to question Dr. Papazoglou’s recommendation. The respondent also submits that the treatment could be provided by a psychotherapist at a reduced rate. Again, however, it has provided no evidence to refute Dr. Papazoglou’s recommendation that the applicant be treated by a psychologist. Therefore, I accept Dr. Papazoglou’s recommendations for treatment.
41The respondent submits that there is no explanation for why a $448.83 fee for “documentation support activity” in addition to the $200.00 fee allowed under the Professional Services Guideline was charged by Dr. Papazoglou. I agree. The $448.83 is a duplication of the maximum $200.00 fee for documentation support activity and, as such, is not payable. Accordingly, the applicant is entitled to $2,893.04 of the treatment plan.
The applicant is entitled to chiropractic, physiotherapy and massage services
42The applicant is seeking entitlement to physiotherapy in the amount of $3,058.75. The treatment plan that purports to recommend the disputed physiotherapy was prepared by Dr. Mandeep Braich, chiropractor, dated April 14, 2021 and recommends chiropractic and massage therapy in addition to physiotherapy. The applicant submits the treatment is reasonable and necessary to address his pain complaints. The respondent relies on the report of its IE assessor, Dr. James, Stewart, physician, and submits the proposed treatment is not reasonable or necessary.
43It is trite law that pain reduction is a legitimate goal of treatment plans. See Pereira v Certas Direct Insurance Company, 2021 CanLII 93246 (ON LAT) and 17-001146 v Aviva Insurance Canada, 2017 CanLII 69449 (ON LAT). In this case the treatment plan’s goals are pain reduction and to increase strength and range of motion. All of these are legitimate goals.
44The respondent submits that the applicant has failed to prove the treatment is reasonable and necessary because Dr. Saxena did not record any pain complaints about the applicant’s neck, shoulders or back or recommend treatment after March 10, 2021. However, Dr. Saxena referred the applicant for physiotherapy on March 10, 2021, which was just one month before the treatment plan in issue was prepared. Accordingly, I do not find that the respondent’s submissions provide any reason to diminish Dr. Saxena’s recommendation. In fact, the evidence is that the applicant voiced his pain complaints to other practitioners after March 10, 2021.
45Pain complaints were recorded by Dr. Papazoglou on April 21, 2021 and that the rehabilitation treatment was helpful and had somewhat alleviated the applicant’s pain. The applicant reported to Dr. Rubenstein that he had shoulder, neck and low back pain. Dr. Stewart noted that on June 4, 2021, the applicant still had residual myofascial discomfort which should resolve with an increase in activity level and as the applicant continued to stretch and strengthen. The treatment plan was recommending more active treatment, which is in keeping with the stretching and strengthening recommended by Dr. Stewart. If Dr. Stewart meant for the applicant to do that at home, then it is reasonable that the applicant would have to be provided with education on how to do a home stretching and strengthening program. There was an educational component to Dr. Braich’s treatment plan. Accordingly, I find that the treatment plan was reasonably necessary for addressing the applicant’s accident injuries.
The applicant is entitled to IRBs from February 8, 2021 to March 15, 2021
46The applicant submits that, not only is he entitled to IRBs as a result of his accident injuries, but the insurer is also required to pay IRBs for the period of time it failed to comply with the procedural requirements in the Schedule. The respondent submits that the applicant is not entitled to any benefits for the period of time before he submitted an OCF-3 disability certificate or an OCF-10 election of benefits, that it provided a proper denial to the applicant within the time required and that, in any event, the applicant does not meet the test for entitlement to IRBs.
IRBs are not payable for any period before the disability certificate was received
47The applicant submits he is entitled to IRBs from the date an OCF-3 disability certificate was first prepared up until he returned to work because he meets the test for entitlement to IRBs and because the respondent failed to respond to his application until March 8, 2021. The applicant provided an OCF-1 application for IRBs on January 13, 2021 and an OCF-3 disability certificate dated December 17, 2020 on February 8, 2021.
48The respondent submits that no IRB is payable before an OCF-3 was submitted to it. I agree. Section 36(3) of the Schedule is very clear that no IRB is payable before the completed disability certificate is submitted. If the Legislature intended IRBs to be payable from the date of the disability certificate rather than the date it was provided to the insurer as submitted by the applicant, it would not have used the word “submitted” in s.36(3). To interpret this section otherwise could result in insured persons withholding disability certificates until they return to work, thereby depriving insurers of an opportunity to assess whether the insured person was ready to return to work at an earlier date. Further, I was provided with no explanation of why it took almost two months after it was prepared for the disability certificate to be submitted to the respondent.
49The respondent submits that based on s.35 of the Schedule, no IRB is payable before an election of benefits is submitted. If that means that once the election is made the insurer is not required to pay up the benefits for the period before the election, I disagree. The only exception is if the election form was requested under s.33 of the Schedule, it was not submitted in time and the insured person has no reasonable excuse for the delay. Otherwise, s.35 only states that an insurer is required to provide an insured person with an OCF-10 election of benefits form. Nowhere does the Schedule state than a specified benefit is not payable for any period before the election of benefits is submitted by an insured person.
50The applicant has admitted that the respondent did not receive the disability certificate until February 8th, 2021. Accordingly, IRBs are not payable at any time before February 8th, 2021.
The respondent provided the requisite notice under s.36(4)
51Once an insured person submits an application for accident benefits plus a disability certificate to the insurer, under section 36(4) of the Schedule, the insurer is required to either pay IRBs, provide medical and any other reasons why it is not payable, advise that an IE is required if that is the case, or advise that it requires information under s. 33 of the Schedule. If an insurer fails to provide such notice within the requisite time period, under s.36(6) of the Schedule, it is required to pay the IRB until it does provide the requisite notice.
52The applicant submits that the requisite notice was not sent until March 4, 2021, which is well beyond the 10 business days for when the notice was required to be sent. However, the respondent wrote to the applicant on February 11, 2021, three days after receiving the disability certificate, advising that the applicant was required to make an election of benefits as he appeared to be entitled to more than one type of weekly benefit. The respondent advised that the applicant was required to complete and return the OCF-10 election form by March 11th, 2021, advising of which weekly benefit he wished to receive. The respondent also wrote that if the applicant elected to receive IRBs, it required an IE and would arrange it once it was in receipt of the completed election form. The letter complied with s. 36(4) because the respondent requested information pursuant to s. 33 well before the 10 day response period.
53There is no requirement in the Schedule setting out how a s. 33 request is to be made. There is no requirement for an insurer to mention s.33 when making a request for information or advise an insured person of the consequences of failure to comply with s.33. The only stipulation under s.33(1) of the Schedule is that the information must be reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
54The February 18th, 2021 letter was a s.33 request and therefore complies with s.36(4) of the Schedule because the respondent sought information from the applicant, the OCF-10 election, in order to determine which specified benefit was payable. The information sought was reasonably required to adjust the claim because the insurer could not determine which benefit the applicant wanted to receive without the election of benefits. For these reasons I find that the respondent complied with its notice obligations under s.36(4) and, accordingly, there is no requirement for the respondent to pay IRBs pursuant to s.36(6) of the Schedule.
The applicant is entitled to IRBs
55To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident (or 26 out of the 52 weeks prior) 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 his employment, which tasks he was unable to perform and to what extent he was unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
56The applicant was self-employed at the time of the accident as a driver for Uber, Lyft, and Skip the Dishes. He was also employed as a technician with Rogers Communications up until June 2020. Based on the applicant’s self employment, his essential tasks would have been driving a vehicle and the ability to carry packages of food short distances. The only information on what his essential tasks as a technician with Rogers Communications consisted of is a lot of bending.
57The applicant relies on the disability certificate of Dr. Roger Singh, chiropractor, dated December 17, 2020 as support that he is entitled to an IRB. Dr. Singh diagnosed the applicant with sprain and strain of the c-spine, thoracic spine, lumbar spine, shoulder girdle and psychological impairments - the last of which he is not qualified to diagnose. He determined that the applicant had a substantial inability to perform the essential tasks of his employment as a result of the accident.
58The respondent submits that the applicant was required to provide more information such as clinical notes and records supporting or corroborating Dr. Singh’s determination and, since he has failed to do so, he has not satisfied his onus of proof. I find that some of the medical records corroborate Dr. Singh’s opinion for the following reasons.
59The applicant submits that his medical records corroborate Dr. Singh’s opinion that he was unable to return to work after the accident. I am unable to find that the Alma Rehab records or Dr. Saxena’s records corroborate Dr. Singh’s opinion. Although the applicant complained to Dr. Saxena of ongoing neck, shoulder and low back pain on February 3 and 22, 2021, Dr. Saxena offered no opinion that the pain complaints interfered with the applicant’s ability to perform the essential tasks of his pre-accident employment. The Alma Rehab records contain places for listing the severity of pain complaints and whether they are worse or better for each visit. However, none of this information was filled out and many of the notes are indecipherable. Accordingly, while the Alma Rehab records disclose that the applicant had pain complaints and some psychological issues, they do not corroborate Dr. Singh’s disability certificate because they do not indicate the severity of those issues and complaints and whether they interfere with his ability to work.
60The applicant submits, and I agree, that the clinical notes of Ms. Gumbs corroborate that the applicant could not work. The respondent relies on the applicant’s advice to Ms. Gumbs on January 11, 2021 that he was looking for a job as evidence that he would have been working then if he had a vehicle. However, the applicant also told her that he was unsure if he could sit for a long period of time while driving. Further, he was experiencing anxiety while driving. He reported to Ms. Gumbs on January 25, 2021 that he was overall doing well, but he still had a lot of pain. This, in addition to the applicant’s description on February 4, 2021 to Dr. Papazoglou of the limitations on his ability to lift and drive is evidence that corroborates Dr. Singh’s estimate that the applicant would be unable to work for 9 to 12 weeks.
61The respondent submits that the applicant did not attend at any clinics or hospitals immediately following the accident. However, the applicant did not have a family physician at the time. Contrary to the respondent’s submission, he attended Alma Rehab on December 14, 2020 and continued to be treated there on a consistent basis.
62The respondent submits that the only reason the applicant did not work was that he did not have a vehicle to drive for his job. However, once the applicant obtained a replacement vehicle on February 26, 2021, he started working.
63The applicant’s bank records show that he received payment from Skip the Dishes on March 9, 2021 and from Lyft on March 10, 2021 for the applicant’s work from March 3 to 9, 2021. Accordingly, I find that he had returned to work at that time. The respondent submits that the record from Lyft that shows he drove 2,139.31 kilometres from January to March 2021 supports that the applicant returned to work earlier. I am unable to find that the Lyft record shows that he drove in February or January as it is a quarterly report.
64Given that the applicant returned to work on March 3, 2021 or 11 weeks post-accident, and that is at the outer limit of Dr. Singh’s duration estimate, I find that the applicant is entitled to IRBs up to March 3, 2021. Since no IRBs are payable before the disability certificate was submitted, and because the quantum of IRBs is not in issue and the respondent has not disputed Mr. Semenov’s calculations, the applicant is entitled to IRBs from February 8, 2021 to March 3, 2021 at the rate of $400.00 per week.
The applicant is entitled to the cost of an accountant’s report
65The applicant is seeking entitlement to $2,850.00 inclusive of HST for the cost of an accounting report prepared by Ivan Semenov, CPA-CMA, BBA. Under s.7(4) of the Schedule, the respondent is required to pay for the expense incurred by the applicant for the purpose of calculating his income from his self-employment as an Uber and an Uber Eats driver if he satisfies the following conditions:
i. The applicant is applying for IRBs based on employment or self-employment considered in the report;
ii. The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004; and
iii. The expense is reasonable and necessary for the purpose of determining the applicant’s entitlement to IRBs.
66Section 7(5) provides the respondent is not required to pay more than $2,500.00 plus HST for the production of an accountant’s report. The amount claimed is within the maximum payable. Although no breakdown of how the cost of the report was arrived at was provided by Mr. Seminov, the respondent has made no submissions on the reasonableness of the cost of the report. Nor is there any issue that Mr. Semenov is a member of a designated body within the meaning of the Public Accounting Act, 2004.
67The respondent submits that cost of an accountant’s report is payable only if an insured person is applying for an IRB. The respondent submits that this means an insured person must submit an application and disability certificate to an insurer before retaining an accountant to prepare a report. The respondent submits that because the invoice for the applicant’s accounting report was provided to the respondent before the applicant’s disability certificate was submitted, that the accounting report is not payable. I was provided with no authority upon which the respondent relied for this proposition.
68The wording of s.7(4) of the Schedule does not refer to an insured person already having applied for an IRB. In fact, the wording in s.7(4) implies that the application for IRBs would be made after the accountant’s report is prepared in order to allow an insured person to determine whether there is an income loss such that an application for IRBs should be made. Otherwise, if s.7(4) were to have the meaning submitted by the respondent, s.7(4) would have used the term “has applied” instead of “is applying.”
69I agree with the Tribunal’s reasoning in V.H. v Aviva Insurance Company of Canada, 2019 CanLII 130385 (ON LAT) and find that the timing of when the accountant’s report was commissioned is irrelevant in this case. This is not a case where the report was commissioned and the applicant waited without explanation for a year before obtaining a disability certificate. In any event, the cost of the accounting report was clearly incurred by the applicant for the purpose of applying for IRBs based his employment and self-employment considered in the report. In any event, the December 17, 2020 disability certificate was prepared well before the accounting report was prepared.
70I find that the applicant’s IRBs were not a straightforward simple calculation because he was self-employed at the time of the accident. Accordingly an accounting report calculating the applicant’s base amount for the purpose of calculating IRBs was necessary. For these reasons I find that the applicant is entitled to the cost of the accounting report.
Interest
71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the benefits he is entitled to in accordance with the Schedule.
The applicant is not entitled to a Reg. 664 award
72The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. It 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, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and the evidentiary onus is on the applicant to demonstrate this.
73The applicant submits that the respondent failed to consider the totality of the evidence, failed to provide medical reasons for denying the psychological assessment, conducted IEs for IRBs after the applicant returned to work, and withheld payment for the accountant’s report despite meeting all the requirements in s.7(4) of the Schedule. I am not convinced that this is evidence of excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct.
74The respondent was entitled to rely on the reports of its IE assessors in determining whether or not the applicant should be out of the MIG and with respect to the applicant’s entitlement to IRBs. The respondent quoted Dr. Rubenstein’s opinion in its denial of the MIG and the psychological assessment and, therefore, clearly provided medical reasons. Further, it was not bad faith for the respondent to rely on a possible interpretation of s.7(4) the Schedule, just because it was incorrect. For these reasons the applicant’s claim for an award is dismissed.
ORDER
75The applicant’s psychological injuries take him out of the MIG.
76The applicant is entitled to the following:
i. $1,995.33 for a psychological assessment proposed by Dr. Papazoglou in a treatment plan dated February 23, 2021;
ii. $2,893.04 of the $3,341.87 recommended for psychological treatment by Dr. Papazoglou in a treatment plan dated May 5, 2021;
iii. $3,058.75 for physiotherapy, chiropractic and massage therapy services proposed Dr. Braich in a treatment plan dated April 14, 2021;
iv. IRBs of $400.00 per week from February 8 to March 3, 2021;
v. $2,825.00 inclusive of HST for an accounting report; and
vi. Interest on the foregoing in accordance with the Schedule.
77The remainder of the applicant’s claims are dismissed.
Released: July 14, 2023
Deborah Neilson
Adjudicator