Licence Appeal Tribunal File Number: 22-003251/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:
Mark Farrugia
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Ilya Kirtsman, Counsel
Natalie Chan, Counsel
Nicole Taylor, Counsel
For the Respondent:
Jane Cvijan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mark Farrugia (“the Applicant”), was involved in an automobile accident on November 28, 2019, and sought benefits from Travelers Insurance Company of Canada (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2A preliminary issue was identified in the Case Conference Report and Order setting this matter for a hearing. It asks whether the Applicant is barred from contesting entitlement to income replacement benefits (“IRBs”) due to a failure to demonstrate eligibility based on the criteria in section 5 of the Schedule.
3I find that this is a reason for not paying a benefit, rather than a preliminary issue to be heard independent of the other issues. Accordingly, I have treated the issue as a defence to the substantive issue of IRB entitlement instead of a preliminary issue.
ISSUES
4The issues in dispute are:
i. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from December 5, 2019 to February 1, 2022?
ii. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period from December 18, 2019 to-date and ongoing?
iii. Is the Applicant entitled to medical benefits proposed by Polyclinic Rehabilitation Institute as follows:
(i) $4,194.50 for a physiotherapy treatment plan, dated June 10, 2021;
(ii) $4,194.50 for a physiotherapy treatment plan, dated August 5, 2021;
(iii) $3,867.18 for a physiotherapy treatment plan, dated September 14, 2021;
(iv) $2,200.00 for an orthopaedic assessment plan, dated November 22, 2021; and
(v) $2,486.00 for a psychological assessment plan, dated December 9, 2021?
iv. Is the Applicant entitled to accounting expenses in the amount of $2,825.00, submitted on December 17, 2020?
v. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed the payment of benefits?
vi. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
5The Applicant withdrew his claim for NEBs.
6The Applicant is entitled to IRBs in the amount of $400.00 per week for the period from February 3, 2020, to March 11, 2020, plus interest pursuant to section 51 of the Schedule.
7The Applicant is not entitled to any additional IRBs.
8The treatment and assessment plans in dispute are not reasonable and necessary as a result of the accident.
9No award is payable.
BACKGROUND
10The Applicant was the driver of a vehicle which was struck from behind by another vehicle while stopped in traffic. He sought no immediate medical attention but went to the hospital two days later with complaints of left wrist pain and increased pain where he was previously experiencing a reducible hernia. The Applicant was treated at the hospital and, following x-rays, was diagnosed with a fractured left wrist, whiplash associated disorder, and sprains and strains.
11The Applicant followed up with his family physician four days after the accident and was prescribed Naproxen, Flexeril, and to engage in physiotherapy. He was referred to a specialist for his hernia, which was surgically repaired in February 2020.
12The Applicant claims that he was unable to work as a union labourer for trade shows for the period from the date of the accident until no earlier than April 2022. He claims entitlement to IRBs for this period and ongoing.
13Additionally, the Applicant claims entitlement to the treatment and assessment plans in dispute.
ANALYSIS
IRBs
14An insured person may be eligible for IRBs if they can demonstrate that they suffer a substantial inability to complete the essential tasks of their employment at the time of the accident. To initiate a claim for IRBs, an insured person must submit a completed disability certificate, pursuant to section 32(2) of the Schedule. If the disability certificate is positive for two or more specified benefits, the insured person must submit an election of benefits within 30 days of being notified by the insurer, pursuant to section 35(1) of the Schedule. Lastly for this hearing, an insured person is not entitled to a specified benefit for any time prior to the submission of a disability certificate, pursuant to section 36(3) of the Schedule.
Period of eligibility
15I find that the Applicant’s period of eligibility for IRBs, if applicable, commences on the date the OCF-3 is submitted, which occurred on February 3, 2020.
16The parties differ on the Applicant’s period of eligibility as it pertains to IRBs. The Applicant submits that the period starts on the day the disability certificate is submitted. The Respondent submits that it starts on the day it received an OCF-10 completed by the Applicant.
17I find that a failure to provide an election of benefits, absent any other notice from the insurer, does not disqualify an insured person from receiving a specified benefit. There is no provision in the Schedule that precludes an insured person from receiving a specified benefit prior to the submission of an election of benefits. Section 35(1) of the Schedule states that an insurer may notify the insured person that they must elect a specified benefit within 30 days of receiving the notice. However, there is no provision in the Schedule which states that an insured person is barred from receiving a specified benefit prior to the submission of an election of benefits.
18I disagree with and am not bound by Boateng v. Allstate Insurance Company of Canada, 2021 CanLII 35568 (ON LAT) (“Boateng”), which the Respondent relies on. In Boateng it was determined that in circumstances where an application indicates possible entitlement to more than one specified benefits, section 35 of the Schedule engages the insurer’s duty to notify the person of the obligation to elect benefits and that an OCF-10 is required for an application to be considered “complete” for the purposes of engaging the obligations set out in section 36(4).
19I find that Boateng adds an additional barrier to entitlement to IRBs that was not the intention of the legislation. In Section 36(2) of the Schedule, the term “complete” is only applied to a disability certificate. The only place in the Schedule that refers to a “complete” application, is section 32(5), which references a completed application for accident benefits, otherwise known as an OCF-1. This is further supported by section 36(3) of the Schedule, which provides that there is no entitlement to a specified benefit before a completed disability certificate is submitted – there is no mention of a completed application, nor an election of benefits.
20Lastly, it would be contrary to the consumer protection nature of the Schedule to further delay an injured persons entitlement to a specified benefit. Adding an additional step in the claims process for specified benefits results in an undue delay in the payment of benefits because it permits insurers up to 10 business days to advise applicants for specified benefits to make an election, and provides an applicant up to 30 days to respond. This is contrary to the spirit of the Schedule which is consumer protection legislation enacted to ease the burden to those injured in motor vehicle accidents. It is also contrary to the overall scheme of specified benefits, which encourages insurers to pay specified benefits as soon as possible and, if necessary, claw back overpayments after the fact, pursuant to section 52 of the Schedule.
The Applicant has not demonstrated that he is entitled to IRBs for the period from March 11, 2020 to-date and ongoing.
21I find that the Applicant has not met his onus to demonstrate entitlement to IRBs beyond March 11, 2020.
22The only document which clearly finds the Applicant to be unable to work as a result of the accident is the OCF-3 by Dr. B. Grossman, chiropractor, dated December 18, 2019. The OCF-3 clearly states that the Applicant’s anticipated period of recovery is 9-12 weeks. Given that the document was created on December 18, 2019, it follows that it is supportive for no later than 12 weeks from that date, which is approximately March 11, 2020.
23The Applicant provided no contemporaneous evidence to support his claim that he is disabled from working as a union labourer at trade shows. The clinical notes and records (“CNRs”) from Dr. M. Rodriguez, the Applicant’s family physician, for a period pre-dating the accident until November 22, 2021, include no evidence of a substantial inability to complete the essential tasks of a union labourer at trade shows. In fact, there is no record of any accident-related complaints in Dr. Rodriguez’ CNRs after February 2020. The Applicant provided no other records from any healthcare service providers that corroborate his claims that he is disabled from working after March 11, 2020.
24I give no weight to the report and opinion of Dr. T. Getahun. Dr. Getahun assessed the Applicant on March 28, 2022, more than two years after the accident, and after the Applicant returned to work. Dr. Getahun’s report fails to acknowledge the Applicant’s pre-existing chronic pain and Percocet use outlined in Dr. Rodriguez’ CNRs in an entry dated November 29, 2018. That entry pre-dates and accident and notes that the Applicant uses Percocet to manage chronic pain sustained from multiple previous accidents including an explosion and work injuries. Instead, Dr. Getahun documented a medical history with no significant pre-accident musculoskeletal complaints and no work-related injuries. Likewise, I give no weight to Dr. Getahun’s criticism of the IE reports by Dr. H. Abbas, orthopaedic surgeon, Dr. D. Dodig, neurologist, Dr. J. McGrory, psychologist, and registered kinesiologist M. Kershaw, due to the partisan nature of Dr. Getahun’s report.
25I defer to the IE assessors’ opinions in the absence of any other evidence to the contrary that is contemporaneous with the period of claim. The Applicant was assessed by Dr. Abbas, Dr. Dodig, Dr. McGrory, and kinesiologist Kershaw, who issued a multidisciplinary report dated August 23, 2021. Dr. Abbas determined that the Applicant does not suffer a substantial inability to perform the essential tasks of a union labourer at trade shows despite him demonstrating some range of motion (“ROM”) restrictions to the neck, low back, and left wrist and shoulder. Dr. Dodig assessed the Applicant and found no evidence of neurological impairment or sequalae related to the accident. Dr. McGrory’s assessment found no psychological difficulties and no psychological disorder that would impair the Applicant. Psychometric testing by the Applicant, administered by Dr. McGrory, resulted in scores falling in the non-depressed and non-anxious range.
26The fact that the kinesiologist Kershaw found the Applicant suitable for light to medium, and that his work is heavy, does not upset the conclusion of Dr. Abbas and the other assessors. The job classifications observed by kinesiologist Kershaw were considered by the assessors when concluding that the Applicant was not substantially disabled from completing the essential tasks of his employment. Kinesiologist Kershaw differed to Dr. Abbas, who concluded that the Applicant suffered no restrictions as they relate to his pre-accident employment. I prefer the opinion of Dr. Abbas in light of no other contemporaneous evidence.
27The Applicant has not met his onus to demonstrate he is substantially disabled from working as a union labourer at trade shows during the first 104 weeks after the accident. Given that the test for entitlement is heightened after 104 weeks following the accident, it follows that the Applicant also does not meet the test for eligibility after 104 weeks following the accident. Additionally, the Applicant’s return to work demonstrates that he is not completely disabled from engaging in employment or self employment for which he is suitable for by way of education, training, and experience.
The Applicant earned post-accident income
28If I am wrong and the Applicant is disabled from working as a union labourer at trade shows, the evidence demonstrates on a balance of probabilities that the Applicant received the CERB benefit in 2020, suggesting that he was able to work but unable to due to the pandemic.
29The Applicant’s bank statements demonstrate that he received payments from the Government of Canada akin to the CERB. Deposits in the amount of $2,000.00, were made on the dates of May 13, June 15, July 9, August 6, and September 4, 2020. While I am not privy to the Applicant’s Employment Insurance file, I agree with the Respondent that the evidence demonstrates on a balance of probabilities that the Applicant received the CERB benefit. Following which, it appears the Applicant received the Canada Recovery Benefit. This period coincides with there being a lack of employment opportunities for the Applicant during the pandemic. Virtually all trade shows ceased public operations during the pandemic. It logically follows that this would have a negative impact on the employment prospects of a union labourer at trade shows during the pandemic and the CERB and Canada Recovery Benefit payments confirm this.
30Further, the Applicant’s financial statements also demonstrate that he made significant ATM deposits that are not accounted for. Between November 30, 2020 and March 23, 2021 he deposited sums at ATMs in addition to a far greater amount in e-transfers from various people, whom the Applicant identified as friends and family in an unsworn statement. An unsworn statement that generally attributes the deposits to friends and family is insufficient for me to find that the payments were other than income. At the least, the Applicant should provide an affidavit to support his evidence so that he can be cross-examined by the Respondent if it requires. That was not done here and is fatal to the persuasiveness of the unsworn statement.
The Applicant’s accounting report is payable, despite the errors in it
31I find that the Applicant is entitled to the cost of the accountant’s report, despite the errors contained in it.
32Section 7(4) of the Schedule provides that an insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculation the persons income from employment or self-employment if all the following conditions are satisfied:
i. The insured person is applying for IRBs based on the 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 insured person’s entitlement to IRBs.
33Pursuant to section 7(5) of the Schedule, the Respondent is not required to pay more than $2,500.00 plus HST for the preparation of the report.
34The accountant’s report satisfies the criteria listed in section 7(4) of the Schedule: The Applicant is applying for IRBs based on the employment considered in the report; the report was prepared by Ivan Semenov, who is a member of the Chartered Professional Accountants of Ontario; and the report reasonable and necessary for the purpose of determining the Applicant’s entitlement to IRBs.
35The Semenov report is reasonable and necessary, despite the errors it contains. The Respondent takes the position that the failure to apply the correct section renders the cost of the report to be not reasonable and necessary. Indeed, the Semenov report calculated the Applicant’s base income based on the last 4 weeks worked prior to the accident multiplied by 13, according to section 4(2)(1)(i), assuming the Applicant qualified to IRBs pursuant to section 5(1)(1)(i) of the Schedule. Rather, the Applicant’s base income should be calculated based on section 4(2)(2)(i) of the Schedule, as his entitlement to IRBs is rooted in section 5(1)(1)(ii) of the Schedule. However, there is nothing in the Schedule that demands that the accountant’s report, referred to in section 7 of the Schedule, must be accurate for the expense to be payable. It would be inequitable to withhold an expense from an insured person because the professional account they commissioned to calculate their entitlement to IRBs erred in their calculation.
36Accordingly, I find that the Applicant is entitled to payment for the accountant’s report in the amount of $2,500.00 plus HST, plus interest pursuant to section 51 of the Schedule.
Physiotherapy plans, dated May 27, July 22, and September 14, 2021
37I find that the Applicant has not met his onus to demonstrate entitlement to the physiotherapy treatment plans.
38The Applicant submits that these plans were created to address his persistent pain symptoms which were affecting his activities of daily living and functional abilities. He submits that the plans have goals of reducing pain, increasing strength and ROM, and restoring his pre-accident function. The Applicant did not address the costs of the plan, but focused on the benefits of aqua therapy, which is a component of in the plans. The Respondent submits that these plans are redundant because it previously approved other treatment plans with similar passive modalities. The Respondent further submits that the plans were submitted after the anticipated period of disability identified by Dr. Grossman, and after the IE assessors determined that his injuries resolved sufficiently for him to return to work and reach maximal recovery with facility-based treatment.
39I agree with the Respondent and find no contemporaneous medical records to demonstrate that ongoing physical therapy, massage therapy, acupuncture, and aqua therapy is reasonable and necessary as a result of the accident. The is no evidence demonstrating that the Applicant consulted his family physician regarding accident-related injuries at any point following his hernia surgery in February 2020. It follows that Dr. Rodriguez never recommended that the Applicant engage in such therapies after February 2020.
40The report by Dr. Getahun is unpersuasive in light of the other evidence and the partisan nature of the report. Dr. Getahun failed to acknowledge the Applicant’s medical history and makes recommendations in hindsight that are contrary to the contemporaneous evidence of the IE assessors. Instead, I prefer the reports of Dr. Abbas, Dr. Dodig, Dr. McGrory, and kinesiologist Kershaw – none of whom recommended ongoing facility-based treatment.
Orthopedic Assessment plan dated November 22, 2021, in the amount of $2,200.00.
41I find that the Applicant has not demonstrated that an orthopaedic assessment is reasonable and necessary as a result of the accident.
42The Applicant submits that he needed the orthopaedic assessment to determine his functional limitations as he claims an inability to work and needed to respond to the reports by the IE assessors. The Respondent submits that the Applicant was treated by an OHIP-funded orthopaedic surgeon after the accident who recommended no further follow-up. It further highlights that the Applicant’s family physician, Dr. Rodriguez, never referred him for an orthopaedic consultation and there are no contemporaneous records indicating that an orthopaedic assessment is reasonable and necessary.
43I find no evidence to support the Applicant’s claim for an orthopaedic assessment. I agree with the Respondent and note that neither Dr. Rodriguez or any of the IE assessors indicated that an orthopaedic assessment is reasonable and necessary.
44I find the Applicant’s submissions that the assessment is required to address his inability to work to be disingenuous in light of the timing of the assessment and his admitted return to work. As noted, and despite my concerns regarding the Applicants’ post-accident employment, the Applicant agrees that he returned to work by April 1, 2022 – 3 days after the report was commissioned. I am unable to find that the report was reasonable and necessary to address the Applicant’s employment when he resumed employment by 3 days following the publication of the report, and perhaps earlier.
Psychological assessment plan dated December 9, 2021, in the amount of $2,486.00
45I find that the Applicant has not demonstrated that a psychological assessment is reasonable and necessary as a result of the accident.
46The Applicant submits that the provisional diagnosis of adjustment disorder with anxiety and depression, and specific phobia provides a clear rationale and is compelling evidence of an accident-related psychological injury. The Respondent submits that the Applicant provided no evidence of a psychological injury other than the treatment plan itself. It submits that a psychological assessment is not necessary in light of the absence of any complaints of a psychological nature.
47I find no persuasive evidence demonstrating that the Applicant suffers or suffered from an accident-related psychological impairment. As noted by the Respondent, the Applicant provided no evidence to support this plan, other than the plan itself. A treatment plan without any other evidence to support it, in light of IE reports to the contrary, is insufficient to demonstrate that a psychological assessment is reasonable and necessary. At the least, the Applicant should provide some supporting evidence, such as CNRs from his family physician or treatment facility, that indicate emotional issues following the accident – there is no such evidence here. Accordingly, the Applicant has not demonstrated entitlement to a psychological assessment.
Interest
48Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found the Applicant entitled to IRBs for the period from February 3, 2020 to March 11, 2020 it follows that he is also entitled to interest.
Award
49I find no award payable.
50The Applicant sought an award under section 10 of Regulation 664. He made no submissions specific to the issue but requested an award of 50% of the amounts due and payable. The Respondent concedes that there was a delay associated with the Applicant’s benefits claim, but attributes it to the Applicant. It submits that it was not clear whether the Applicant met the eligibility criteria for IRBs, and it required more information from the Applicant, which it submits was not provided until after the Applicant initiated his application with the Tribunal.
51Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
52I find no basis for an award. An award is based on an insurer’s behaviour while adjusting the Applicant’s claim. Having failed to identify any behaviour that warrants an award, it follows that the Applicant has not met his onus to demonstrate entitlement to an award.
CONCLUSION and ORDER
53The Applicant withdrew his claim for NEBs.
54The Applicant is entitled to IRBs in the amount of $400.00 per week for the period from February 3, 2020 to March 11, 2020, plus interest pursuant to section 51 of the Schedule.
55The Applicant is not entitled to any additional IRBs.
56The treatment and assessment plans in dispute are not reasonable and necessary as a result of the accident.
57No award is payable.
Released: October 31, 2024
Brian Norris
Adjudicator