Citation: Aized v. The Co-operators, 2023 ONLAT 20-012300/AABS

Licence Appeal Tribunal File Number: 20-012300/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:

Ambreen Aized

Applicant

and

The Co-operators Insurance Company

Respondent

DECISION

VICE-CHAIR:

E. Louise Logan

APPEARANCES:

For the Applicant:

Dilenthi S. Warakaulle, Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

1The applicant, Ambreen Aized, was involved in an automobile accident on February 19, 2020, and sought benefits from the respondent, the Co-operators Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal"). The parties participated in a case conference where they identified and agreed to the issues in dispute, which proceeded to a written hearing.

ISSUES

3The following issues are in dispute:

Is the applicant entitled to an income replacement benefit ("IRB") in the weekly amount of $400.00 from March 26, 2021 to date and ongoing?
Is the applicant entitled to a medical benefit in the amount of $1,660.35 for an attendant care assessment, recommended by Joanne Romas, occupational therapist, in an OCF-18/treatment plan ("OCF-18") dated June 23, 2020?²
Is the applicant entitled to a medical benefit in the amount of $2,559.50 for physiotherapy services recommended by Top Rehab in an OCF-18 dated September 25, 2020?³
Is the applicant entitled to a medical benefit in the amount of $390.32 for a TENS machine and other assistive devices recommended by Top Rehab in an OCF-18 dated June 4, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find the applicant is entitled to:

a. an IRB in the amount of $400.00 a week for the period March 26, 2021 to February 18, 2022, subject to the calculation provisions in section 7(3) of the Schedule; and

b. interest pursuant to section 51 of the Schedule.

5I find the applicant is not entitled to medical benefits for physiotherapy services, an attendant care assessment, or a TENS machine and other assistive devices.

ANALYSIS

6The applicant was the driver of an automobile when she was rear-ended while making a right turn. Police and EMS did not attend the accident, and the applicant drove herself home and then went to the collision reporting centre. The applicant saw her family physician, Dr. Raghad Hindoosh, on the day of the accident and reported neck pain, dizziness, should and upper back pain.⁴ The Disability Certificate ("OCF-3") dated June 14, 2020 lists accident-related injuries of severe neck spasm, severe shoulder and upper back strain, along with deterioration of a previously diagnosed "bulging disc".⁵ The applicant was removed from the Minor Injury Guideline ("MIG") for psychological reasons on March 12, 2021.⁶

Income Replacement Benefits

7Entitlement to an IRB falls under sections 5(1)(1) and 6(2)(b) of the Schedule. An IRB is payable under section 5(1)(1) if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. I will refer to this as the pre-104 period. To be eligible for an IRB 104 weeks post-accident, the applicant must meet the stricter test under section 6(2)(b) which requires her to have a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience. I will refer to this as the post-104 period.

8There is no dispute that the applicant was employed full-time as a student placement coordinator at Oxford College of Arts, Business and Technology at the time of the accident. Following the accident, the applicant took three days off work, and then returned to work on modified duties, working from home. The applicant received an IRB for the period February 26, 2020 to March 26, 2021. The respondent stopped paying benefits, as of March 26, 2021, based on the results of section 44 Insurer's Examinations ("IEs").⁷

Entitlement to an IRB for the pre-104 period

9The inquiry under section 5(1)(1) is divided into two steps: 1) what are the essential tasks of the insured's pre-accident employment; and 2) does the insured have a substantial inability, as a result of the accident, to perform those tasks? The onus to demonstrate entitlement rests with the applicant.

10The applicant has provided information about the essential tasks of her pre-accident employment in her submissions. Based on the assessment reports of Ms. Joanne Romas, occupational therapist,⁸ and Dr. Sarvin Ghadam, psychologist,⁹ the essential tasks include communication with placement stakeholders and clients, visiting nursing homes, teaching students about placement success strategies, assisting students in developing job search and interview skills, and conducting workshops for placement students. These tasks require prolonged sitting in front of a computer, attention to detail, ability to work independently, updated knowledge about the job market, ability to choose best solutions for students, think critically, problem solve, and organize. They require attention and concentration.¹⁰ The applicant advised Ms. Romas that she is not required to regularly lift heavy loads at work. The applicant did not provide the Tribunal with a copy of the Employer's Confirmation Form (OCF-2). The respondent does not dispute the applicant's description of the essential tasks of her pre-accident employment.

11The applicant argues that, as a result of her accident-related injuries, she is unable to perform the essential tasks of her pre-accident employment. In support of her position, she relies on the clinical notes and records of Dr. Hindoosh,¹¹ the OCF-3, the September 17, 2020 in-home assessment report of Ms. Romas,¹² a August 27, 2020 psychological assessment report¹³ and December 9, 2021 progress report of Dr. Ghadam.¹⁴ The applicant has also provided a Medical Assessment Report of Dr. Sana Zubairi of Holistic Health in Pakistan, dated December 5, 2021.¹⁵

12The applicant submits that she has been consistent in her reporting of the impact of her accident-related injuries on her ability to work. On June 6, 2020, she reported to Ms. Ramos that, even though her employer had accommodated her by reducing work hours and allowing her to work from home, she struggled to work full-time because it aggravated her pain.¹⁶ She also reported that she has experienced significant difficulty with attention, concentration and memory since the accident. On August 7, 2020, she reported to Dr. Ghadam, psychologist, that she was forgetful, rereading materials and emails, and having difficulty expressing herself at work.¹⁷ Dr. Ghadam noted that the applicant displayed consistent pain-focused behaviours, including moving, standing up and changing positions throughout the assessment. She diagnosed the applicant with Major Depressive Disorder, Single Episode, Moderate, features of a Post-traumatic Stress Disorder with ongoing Specific Phobia (Situational: driver and passenger type) and a Somatic Symptom Disorder with Predominant Pain, moderate.

13A November 4, 2020 letter from Dr. Hindoosh to the applicant's legal counsel indicates that the applicant was advised to take short term disability due to her severe neck and arm pain and recent diagnosis of severe anxiety and depression.¹⁸ A second letter written by Dr. Hindoosh on September 13, 2021 indicates the applicant needed to work from home for a month.¹⁹ The December 9, 2021 psychology progress report indicates there had been substantial limitations in her cognitive functioning since the accident including preoccupation with pain, difficulty concentrating and multi-tasking, and short term memory difficulties. The report notes that these limitations were impacting the applicant's ability to work, as she cannot sit for prolonged periods due to pain, is very forgetful, rereads materials and emails, and has difficulties finding words to express herself.²⁰

14The respondent submits that the applicant has not demonstrated, on a balance of probabilities, that she is unable to perform the essentials tasks of her pre-accident employment. In support of its position, the respondent submits that after the accident, the applicant continued to work from home a minimum of 30 hours per week with her pre-accident employer. The respondent cites Dr. Hindoosh's note immediately after the accident stating that the applicant would be able to return to work on modified duties and could still work 6 hours per day given her pain tolerance.²¹ The respondent argues the applicant has not submitted any evidence suggesting her work quality or performance has been affected due to her accident-related injuries, other than she is working fewer hours a day than before. The respondent relies on the section 44 assessments of Dr. Raymond Zabieliauskas, physiatrist²² and Dr. Kehinde Adekunle Aladetoyinbo, psychiatrist²³ both dated February 26, 2021. Both assessors opined that the applicant does not suffer a substantial inability to perform the essential tasks of her employment. The respondent also points to the October 10, 2020 opinion of Dr. Kafai Lai, orthopaedic surgeon, who stated the applicant's pain appeared to be predominantly mechanically related, secondary to arthritic changes in her neck, with no neurological elements involved, and did not relate her pain to the accident.²⁴

15I find the applicant is entitled to an IRB for the pre-104 period for the following reasons. The pre-accident job tasks include prolonged sitting in front of a computer, and involve detailed work, thinking critically, problem solving, and organizing, all of which require attention and concentration.²⁵ I find that the psychology reports of Dr. Ghadam and the clinical notes and records of Dr. Hindoosh indicate that the applicant's accident-related psychological condition and pain negatively impacted her ability to carry out the essential tasks of her pre-accident employment. Specifically, I find that, since the accident, the applicant's psychological condition and pain have impacted her ability to sit in front of a computer for prolonged periods, concentrate, think critically, and communicate effectively. I do not agree with the respondent that the applicant is simply working fewer hours a day. The evidence also shows that the applicant was required to take a medical leave from work in November 2020.²⁶ Further, I find that Dr. Hindoosh's clinical notes and records²⁷ and Dr. Ghadam's progress report²⁸ and December 20, 2021 letter²⁹ all indicate that as of December 2021 the applicant's condition continued to impact her ability to perform the essential tasks of her pre-accident employment. As a result, I agree with the applicant that there is a direct relationship between her post-accident cognitive issues and pain, and her substantial inability to perform the essential tasks of her pre-accident employment.

16I do not find the IE reports of Dr. Aladetoyingo and Dr. Zabieliajjskas to be compelling evidence on the issue of entitlement to an IRB. Both reports conclude the applicant does not suffer a substantial inability to perform the essential tasks of her employment, but they do not refer to the essential tasks of the applicant's pre-accident employment or demonstrate a depth of understanding of the applicant's work tasks that support their conclusions. As a result, I prefer the medical evidence submitted by the applicant which provides a more detailed understanding and analysis of the essential tasks of the applicant's employment and the impact of her accident-related injuries. One exception to this is the report of Dr. Zubairi which does not speak to the applicant's employment, and to which I give no weight.

17For the reasons set out above, I find the applicant is entitled to an IRB for the period March 26, 2021 to February 18, 2022.

Entitlement to an IRB for the post-104 period

18I find that the applicant has failed to demonstrate, on a balance of probabilities, that she suffered a complete inability to engage in any employment for which she is reasonably suited by education, training or experience for the post-104 period.

19The applicant submits that the question of suitable employment is a question of fact, viewed fairly and realistically. The applicant cites her inability to return to her full-time position, perform her work tasks optimally and earn her pre-accident employment in support of her position. The applicant submits that her situation is analogous to B.L.J. v. the Cooperators Insurance Company ("B.L.J."),³⁰ where the Tribunal found that the applicant met the post-104 test because she could only work part-time and was not successful in her work tasks. The respondent submits that the applicant is not entitled to a post-104 IRB as she does not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training and experience.

20I agree with the respondent. I find that the applicant's situation is not analogous to that in B.L.J.. In that case, the applicant was not able to return to her high stress job, and instead worked part-time at a lower stress workplace that provided more flexible, light duties that accommodated her symptoms. The Tribunal found that a part-time role at a different workplace was substantially different in nature, status and remuneration to B.L.J.'s pre-accident employment. That is not the situation in the case before me. While the applicant cites her inability to return to her full-time position, perform her work tasks optimally and earn her pre-accident employment in support of her entitlement to a post-104 IRB, she is nonetheless able to perform some, albeit not all, of her pre-accident employment tasks. This is a strong indication that she is not completely unable to perform this kind of employment.

21In my view, the applicant has not provided compelling evidence that she is completely unable to engage in any employment for which the applicant is reasonably suited by education, training or experience, as required by the Schedule. As a result, I find the applicant has not met her burden of demonstrating she meets the stricter post-104-week IRB test. I find the applicant is not entitled to an IRB for the post-104 period.

Quantum of IRB

22The respondent submits that if the applicant is entitled an IRB, which it denies, the IRB quantum is not $400.00 a week given the applicant's post-accident income. The applicant agrees. While the Case Conference Report and Order states that the applicant is seeking an IRB in the amount of $400.00 a week, in her submissions the applicant is seeking an IRB with appropriate deductions made for post-accident income pursuant to the Schedule. She notes that the respondent has been provided with the applicant's post-accident paystubs to facilitate this calculation.

23I find the applicant is entitled to an IRB in the amount of $400.00 a week for the period March 26, 2021 to February 18, 2022, subject to the applicant providing the respondent with the necessary paystubs so that it can apply the calculation provisions in section 7(3) of the Schedule which provide that the insurer may deduct 70% of gross employment income from the amount to be paid for an IRB.

Medical Benefits

24Pursuant to section 15 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.

25A treatment plan on its own is not compelling evidence in support of treatment and it is insufficient to meet the applicant's burden. There must be compelling, contemporaneous evidence in support of the treatment plan. The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.³¹

Physiotherapy services

26I find that the applicant is not entitled to a medical benefit for physiotherapy services in the amount of $2,559.50 for the following reasons.

27The applicant submits that the OCF-18 is reasonable and necessary. The applicant submits that it outlines the injuries sustained by the applicant, the treatment that will help with her recovery, and identifies the goals of the treatment, namely pain reduction, increase in range of motion and strength, and return to activities of daily living. In support of her position, the applicant cites the clinical notes and records of Dr. Hindoosh, who has repeatedly recommended physiotherapy. She also argues that pain reduction is a legitimate goal if it contributes to the person's level of functioning. The applicant further submits she has provided new medical information to the respondent that supports the need for treatment. She does not identify this new medical information in her submissions.

28The respondent submits that the OCF-18 was denied in October 2020 on the basis that the applicant's injuries fell within the MIG. The respondent relies on the report of Dr. Lai which concluded that the applicant's complaints are predominantly mechanically related, secondary to arthritis changes in her neck, there are no neurological elements and that her low back pain is related to sciatica that is not accident-related.³² The respondent states that the applicant's accident-related physical injuries are predominantly minor, and that the OCF-18 is not reasonable or necessary.

29Upon review of the submissions and evidence, I find that the applicant has not met her burden to demonstrate the OCF-18 is reasonable and necessary for the following reasons.

30The OCF-18 in dispute is dated September 25, 2020. As noted above, the applicant was removed from the MIG on March 12, 2021 for psychological reasons. Upon review of the evidence, I find that the clinical notes and records of Dr. Hindoosh show that he repeatedly recommended physiotherapy treatment between February 19, 2020 and November 4, 2020. In the IE report dated February 26, 2021, Dr. Zabieliauskas opined that the OCF-18 is not reasonable or necessary as the applicant does not have any objective, quantifiable physical impairment or physical disability attributable to the accident.³³ I find this opinion is consistent with the October 10, 2020 findings of Dr. Lai. I also find that while the applicant indicates she has provided the respondent with updated medical information that supports her need for treatment, she does not identify or point to this medical information in her submissions. As a result, I prefer the opinion of Dr. Zabieliauskas, who examined the applicant on February 11, 2021 and found the OCF-18 was not reasonable or necessary.

31For the reasons set out above, I find the applicant is not entitled to a medical benefit for physiotherapy services in the amount of $2,559.50.

Attendant Care Assessment

32I find that the applicant is not entitled to a medical benefit in the amount of $1,660.35 for an attendant care assessment for the following reasons.

33In determining whether an assessment is reasonable and necessary, it must be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists or if a type of service is needed. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, she must point to objective evidence that there are grounds for seeking the assessment.

34The applicant submits that the assessment was necessary as she is struggling with her daily activities including work and the assessment identified recommendations in assisting her recovery and returning to pre-accident life. The applicant points to the OT in-home assessment report of September 17, 2020 in support of her position.³⁴ The applicant further submits that Top Rehab has been treating her since the accident and is in a better to position to assess her progress while recommending treatment.

35The respondent submits that the applicant has not met her burden of demonstrating the assessment is reasonable and necessary. The respondent relies on the conclusions of its section 44 assessors that the applicant does not require attendant care, and notes the applicant continues to work in almost the same capacity as pre-accident and remains independent in her personal care. The respondent also cites the fact the applicant's physical injuries are predominantly minor in support of its position.

36Upon review of the evidence, I find the applicant has not met her burden of demonstrating an attendant care assessment is reasonable and necessary for the following reasons. As noted above, the applicant cannot rely on the treatment plan itself as compelling evidence in support of the plan, there must be objective supporting evidence. While she reported limitations in her activities of daily living to Ms. Ramos, I give more weight to the IE report of Dr. Zabieliauskas where he opined that "there is no evidence of any residual physical impairment or physical disability that would require any attendant care needs whatsoever now and into the future with respect to the accident".³⁵ In preferring the report of Dr. Zabieliauskas, I find it is more consistent with the medical evidence as a whole, and that the applicant has not pointed me to evidence in the clinical notes and record of Dr. Hindoosh or any other treating provider that supports the need for an assessment.

37Based on the evidence before me, I find that the applicant has failed to satisfy, on a balance of probabilities, that the attendant care assessment is reasonable and necessary.

TENS machine and other assistive devices

38The applicant is seeking medical benefits submitted on an OCF-18 dated June 4, 2020 for a TENS machine and other assistive devices. I find the applicant is not entitled to these medical benefits for the following reasons.

39The respondent submits that these items were actually submitted on an Application for Expenses ("OCF-6") on June 4, 2020 and the receipts are all dated March 2020. The invoices for these items were received by the applicant prior to the submission of her Application for Benefits ("OCF-1") dated May 22, 2020. The respondent argues it is not liable to pay for these expenses pursuant to section 38(2) of the Schedule as they were incurred prior to the submission of a treatment plan. The applicant did not address section 38(2) in her submissions.

40I agree with the respondent. I find that the OCF-6 submitted by the applicant on June 4, 2020 includes invoices for chiropractic services, a TENS machine and other assistive devices that were dated in March 2020 before her OCF-1 was submitted. Pursuant to section 38(2), the applicant is not entitled to a medical benefit for these items.

Interest

41The applicant is entitled to interest on the overdue payment of an IRB pursuant to section 51 of the Schedule.

CONCLUSION

42For the reasons set out above, I find the applicant is entitled to:

a. an IRB in the amount of $400 a week for the period March 26, 2021 to February 18, 2022, subject to the calculation provisions in section 7(3) of the Schedule; and

b. interest on overdue payments pursuant to section 51 of the Schedule.

43I find the applicant is not entitled to medical benefits for physiotherapy services, an attendant care assessment, or for a TENS machine and other assistive devices.

Released: February 6, 2023