Citation: Adjuyo v. Pembridge Insurance Company, 2023 ONLAT 21-004051/AABS

Licence Appeal Tribunal File Number: 21-004051/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:

William Adjuyo

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Omar Makhatadze, Paralegal

For the Respondent: Colleen Mackeigan, Counsel

HEARD: BY WAY OF WRTTEN SUBMISSIONS

OVERVIEW

1William Adjuyo, the applicant, was involved in an automobile accident on June 27, 2018, 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, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit of $400.00 per week from June 4, 2018 to date and ongoing?

ii. Is the applicant entitled to $2,326.04 for chiropractic and physiotherapy services proposed by Brampton Civic in a treatment plan dated February 9, 2019?

iii. Is the applicant entitled to $1,300.00 for a functional abilities evaluation proposed by O.I.A.C. in a treatment plan dated February 11, 2019?

iv. Is the applicant entitled to $1,850.00 for a functional cognitive assessment proposed by O.I.A.C. in a treatment plan dated March 11, 2019?

v. Is the applicant entitled to $2,189.27 for chiropractic and physiotherapy services proposed by Brampton Civic in a treatment plan dated September 25, 2020?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

3In their submissions, the parties confirmed that various treatment plans for chiropractic services, psychological treatment and occupational therapy, listed as issues in dispute in the Case Conference Report and Order (CCRO), had been approved by the respondent. As such, they are no longer issues in dispute in these proceedings.

result

4I find that:

i. Income replacement benefits are not an issue in dispute in these proceedings. As such, I will not be making a determination on the issue of whether the two-year limitation period to dispute this specified benefit has been triggered;

ii. The applicant is not entitled to the OCF-18 dated February 9, 2019 for chiropractic and physiotherapy services;

iii. The applicant is entitled to the remaining treatment plans in dispute plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

Income Replacement Benefits (“IRBs”)

5Although IRBs were listed as an issue in dispute in the CCRO, the applicant confirms in his submissions that he has not applied to receive IRBs from the respondent, he has not submitted an OCF-10, nor is he claiming any quantum owed. Rather the applicant is requesting that the Tribunal make a determination that an Explanation of Benefits (EOB) sent by the respondent has not triggered the two year limitation period to dispute a specified benefit and that the applicant would not be prevented from applying for IRBs at a future date.

6I agree with the respondent that there is no basis for the Tribunal to make an Order on an applicant’s future entitlement to apply for a benefit that is not currently in dispute.

7The applicant concedes that IRBs are not an issue in dispute in these proceedings, as he has not yet applied for IRBs. Since the date of the accident, the applicant has been receiving short-term and long-term disability benefits. On February 4, 2019, the respondent sent the applicant an EOB, stating that he was not entitled to IRBs. The applicant submits that he and the respondent disagree as to whether this EOB has triggered the two year limitation period for disputing a specified benefit.

8Although the applicant cites Tribunal decisions¹ and the Court of Appeal decision of Tomec² in support of his argument that he is entitled to apply for IRBs if his current status changes, I find that these decisions are of limited persuasive value. In all of the decisions cited by the applicant, the specified benefit had already been applied for and denied by the insurer. As such, in those cases IRBs were issues in dispute. That is not the case in the present matter. The applicant has not cited any caselaw or statutory authority which holds that the Tribunal may make a ruling on a theoretical, future entitlement to apply for IRBs that are not currently in dispute.

9Given the foregoing, and that IRBs are not an issue in dispute in these proceedings, I decline to make a determination as to whether the limitation period relating to this benefit has been triggered.

OCF-18 dated February 9, 2019 for chiropractic and physiotherapy services

10I find that the applicant has not established that the treatment plan for chiropractic and physiotherapy services is reasonable and necessary.

11The applicant submits that all of the proposed treatment plans are reasonable and necessary to address his accident-related impairments. With respect to physical impairments, he asserts that he suffers from a right knee injury including a posterior cruciate ligament right knee tear, posterolateral corner injury of the right knee, as well as lumbar, cervical spine and right shoulder injuries.

12The respondent submits that it denied the OCF-18 on the basis of its Physiatry Insurer’s Examination (“IE”) report dated January 23, 2019. Its assessor Dr. Hosseini opined that at the time, the applicant did not require any further facility-based treatment, until he had his orthopaedic surgery evaluation regarding his right knee, an ultrasound of the right shoulder to rule out underlying pathology and imaging of the upper and lower extremities and potentially the spine, given the reported symptoms of numbness and tingling.

13I agree with the respondent’s submissions that at the time this OCF-18 was submitted, it did not appear that chiropractic and physiotherapy treatment was being recommended.

14The clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Humaira indicated that in the month after the accident, in July 2018, the applicant was complaining of a knee impairment, and Dr. Humaira recommended that the applicant “continue with physio”. However, in a subsequent November 2018 entry Dr. Humaira indicated that the applicant had an upcoming orthopaedic appointment for his knee and was using a knee brace. I do not see that Dr. Humaira recommended physiotherapy at that time. Further, in the November 23, 2018 orthopaedic consultation, Dr. Lansing noted that usually such symptoms would improve with physiotherapy, but “given the chronicity” of the applicant’s knee symptoms, a referral was made for an opinion regarding potential knee surgery.

15The applicant did not submit any CNRs from 2019, indicating that at the time the OCF-18 was submitted, physiotherapy or chiropractic treatment was being recommended by his family physician or orthopaedic surgeon. Rather, it appears that potential surgical options were being explored. As such, I find that the applicant has not established that the proposed treatment was reasonable and necessary.

OCF-18 dated September 25, 2020 for chiropractic and physiotherapy services

16I find that the subsequent OCF-18 for chiropractic and physiotherapy services is reasonable and necessary.

17Although at the time the prior treatment plan dated February 9, 2019 was submitted surgical options were being explored, by the time this OCF-18 was submitted, the applicant’s orthopaedic surgeon had determined that surgery was not appropriate. In an orthopaedic report dated July 23, 2020, Dr. Belsch opined that surgery would not address the applicant’s stability issues with the knee. Rather, Dr. Belsch recommended physiotherapy with quad strengthening.

18Although the respondent relies on its IE assessment of Dr. Mula dated December 14, 2020 to deny the treatment, I do not find the report to be persuasive. Dr. Mula opined that the applicant had reached a plateau in his recovery, and that further chiropractic and physiotherapy interventions would not be of benefit. However, this is contradicted by the report of the applicant’s orthopaedic surgeon, who explicitly recommended physiotherapy treatment a few months before the OCF-18 was submitted.

19Although the respondent points to the fact that in January 2022 the applicant was scheduled to see a knee specialist and that other knee interventions were being considered, I note that this was 15 months after the OCF-18 in dispute was submitted. As such, I find the medical evidence contemporaneous with the OCF-18 establishes that the proposed treatment was reasonable and necessary.

The applicant has established entitlement to a functional abilities evaluation

20The applicant submitted an OCF-18 dated February 11, 2019, proposing a functional abilities evaluation (“FAE”) of the degree of the applicant’s functional impairment. The OCF-18 noted that the applicant had not returned to work and reported difficulties with his activities of daily living.

21The respondent denied the assessment on the basis that the applicant was not pursuing IRBs, and submits that FAEs are typically used to guide a claimant’s return to pre-accident employment. It further argues that the applicant had not completed the diagnostic testing recommended by Dr. Hosseini in his IE report and as such, further facility-based treatment would not be warranted.

22I do not find the respondent’s arguments to be persuasive. Although I agree with the respondent that the applicant was not pursuing IRBs, I do not view FAE assessments as solely relating to functional impairments in the employment context. In the present case, the applicant consistently reported functional impairments in his activities of daily living (ADLs) to his assessors. The applicant’s chronic pain assessor Dr. Gofeld noted in his October 2019 report that the applicant was limited in most of his ADLs and recommended a functional abilities evaluation.

23Further, although Dr. Hossieni had recommended further diagnostic testing prior to any further facility based treatment, I do not find that this would preclude an assessment of the applicant’s functional impairments. The applicant’s consistent pain complaints, his physical injuries and the impact on his ability to function warrants further investigation into the limitations imposed on him from his accident-related injuries. For these reasons, I find that the FAE is reasonable and necessary.

The applicant has established entitlement to a functional cognitive assessment

24The applicant submitted an OCF-18 dated March 11, 2019 for a functional cognitive assessment. The OCF-18 proposes an assessment of the applicant’s cognitive deficits and degree of the applicant’s functional impairment, and noted the applicant’s reported difficulties with memory, concentration and focus.

25I find that the proposed functional cognitive assessment is reasonable and necessary.

26The applicant has consistently reported cognitive impairments to numerous assessors. In his s. 25 psychological assessment report dated March 3, 2019, Mr. Chiodo noted the applicant’s reports that his concentration and focus were disrupted due to pain. Similar reports were made to Dr. Gofeld during the s. 25 chronic pain assessment, and Dr. Gofeld specifically recommended a cognitive assessment. The respondent argues that no cognitive impairments were reported to the applicant’s family physician despite “regular” post-accident appointments. However, I note that I have not been provided with any CNR entries for 2019, but in this year, seven assessments were conducted. Therefore, the various IE and s. 25 assessments form the bulk of the medical record during the period the OCF-18 was submitted.

27The applicant similarly reported cognitive deficits to the respondent’s IE assessor. In a psychological IE report dated January 23, 2019, Dr. Abbas noted that during the assessment, the applicant showed signs of fatigue, attention difficulty and that the applicant was concerned about the disruption in his memory. The respondent denied the OCF-18 on the basis of a subsequent April 22, 2019 paper review by Dr. Abbas, where he held that the applicant did not require another assessment, but that six sessions of cognitive behavioural therapy would be sufficient. However, I note that in a subsequent IE assessment conducted by Dr. Abbas on February 24, 2020, he noted the applicant’s reports that he was deteriorating mentally. Dr. Abbas found that the applicant had not reached maximum medical recovery, that his prognosis was “guarded”, and that “hopefully 12 sessions of therapy will help”.

28As such, I find that the applicant has led sufficient evidence that further investigation into his cognitive deficits is warranted.

Interest

29The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 dated September 25, 2020 for chiropractic and physiotherapy treatment, and the OCF-18s for the FAE and functional cognitive assessment.

ORDER

30I find that:

i. The applicant is not entitled to the OCF-18 dated February 9, 2019 for chiropractic services;

ii. The applicant is entitled to the remaining treatment plans in dispute plus interest in accordance with s. 51 of the Schedule.

Footnotes

1. 1Pena v. Allstate Insurance Company of Canada, 2021 CanLII 117443 (ON LAT); P.V. and Economical Insurance, 2020 CanLII 12744 (ON LAT)
2. 2Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882