Licence Appeal Tribunal File Number: 22-006127/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:
Fjolla Ramadani
Applicant
And
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Karen Hulan, Counsel
For the Respondent: Shelby Chung, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ms. Fjolla Ramadani (the “applicant”) was involved in an automobile accident on March 11, 2020, 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 Pembridge Insurance Company (the “respondent”) 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 (“IRB”) in the amount of $237.72 per week from August 11, 2021, to date and ongoing?
ii. Is the applicant entitled to chiropractic services in the amount of $2,929.59, proposed by Kate Johnson Weber (Preferred Rehab) in a treatment plan (“OCF-18”) submitted on March 9, 2022?
iii. Is the applicant entitled to occupational therapy services in the amount of $2,398.75, proposed by Kristen Oliveira (Novus Rehabilitation) in an OCF-18 submitted on March 3, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent indicated in its submissions that it withdrew the issue of an IRB repayment, which is listed at paragraph 2(4) in the case conference report and order (“CCRO”) for this matter. Therefore, I have not considered whether the applicant is liable to repay any IRB payments to the respondent in this decision.
RESULT
4The applicant is not entitled to an IRB or to either of the disputed OCF-18s. No interest is payable. The application is dismissed.
ANALYSIS
The applicant’s entitlement to an IRB
5For context, the respondent submits it paid an IRB to the applicant from March 19, 2020, to when it suspended payments on February 23, 2022, due to non-compliance with section 33 of the Schedule. Part of this payment was issued after the case conference for this matter when the respondent undertook a revised IRB calculation of new income information provided by the applicant in July 2023. That calculation determined there was no overpayment of benefits as asserted by the respondent at the case conference. In fact, the calculation established that the respondent owed the applicant an additional $4,717.61 up to the IRB stoppage date of February 23, 2022, based on revised weekly payments of $308.84.
6The respondent did not point to evidence to support its submissions, and prior to the hearing, the parties did not seek to amend their IRB dispute based on this revised calculation. As agreed by the parties at the case conference, the applicant seeks a weekly IRB of $237.72 starting on August 11, 2021. However, the respondent’s submissions indicate that the weekly IRB payment paid up to February 23, 2022, was $308.84. The parties do not address or reconcile the period or quantum discrepancies in their submissions (i.e., should the period of entitlement now start at February 24, 2022 as opposed to August 11, 2021, and should the weekly quantum be revised to $308.84 as opposed to $237.72?). I therefore proceeded to proceed on the IRB as stipulated in the case conference report and order (“CCRO”) for this matter.
Within 104 weeks after the accident (up to March 11, 2022)
7I find the applicant has failed to demonstrate she is entitled to an IRB within 104 weeks after the accident.
8Section 5(1) of the Schedule lays out the eligibility criteria for an IRB within 104 weeks of the accident, which is a three-part test. In this case, the applicant must first show she was employed at least 26 weeks during the 52 weeks before the accident, or that she was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident; secondly, that she suffered a substantial inability to perform the essential tasks of the employment in which she spent the most time during the 52 weeks before the accident and within 104 weeks after the accident; and lastly, that her substantial inability is a result of the accident.
9Section 58(2) of the Schedule requires the applicant to make reasonable efforts to return to the employment she was engaged in at the time of the accident. This is to be read in concert with section 58(4) of the Schedule, which says the respondent may stop payment of the benefit if the applicant does not comply with section 58(2).
10Section 33(1) of the Schedule requires the applicant to provide any information reasonably required to assist the respondent in determining the applicant’s entitlement to a benefit with 10 days of receiving a request from the respondent. Further, the respondent is not required to pay a benefit in respect of any period the applicant fails to comply with section 33(1).
11The applicant submits that an interplay exists between her physical and psychological conditions that affects her overall level of functioning, and therefore reasons that the totality of her disability should be weighed as opposed to its separate physical and psychological components. The applicant also challenges the evidence of Mr. Denys Remedios (forensic vocational specialist and career counsellor), who performed a transferrable skills analysis and labour market survey on behalf of the respondent. The applicant says Mr. Remedios did not identify the physical demand characteristics for each job. The applicant goes on to explain that Mr. Remedios’ job proposals did not contemplate whether the applicant’s physical limitations and psychological stamina are compatible with the job requirements, or whether the applicant’s limited English language skills would present a barrier. The applicant also questions the availability of the jobs proposed in Mr. Remedios’ report and identifies the applicant’s driving anxiety as a barrier to employment. The applicant relies on the emergency records of the London Health Sciences Centre, the clinical notes of Dr. Agron Alija (family physician), and the section 44 Insurer’s Examination (“IE”) reports of Dr. Yuri Marchuk (physiatrist) up to March 11, 2022.
12The respondent argues that the applicant did not comply with sections 58(2) and 33(1) of the Schedule. The respondent says the applicant was able to start a graduated return to work as of November 26, 2020, and that its subsequent request of the applicant to demonstrate she was making attempts to mitigate her loss by returning to modified work duties was reasonable. The respondent further submits its request for updated medical and collateral benefit provider records was reasonable to assess ongoing IRB entitlement, and relies on L.K. v. The Guarantee Company of North America, 2017 CanLII 56674, ON LAT (“L.K.”) to show that a failure to provide information or a reasonable explanation for any delay in doing so can disentitle benefits for the period of non-compliance. The respondent also relies on Fagundes v. Intact Insurance, 2023 CanLII 26941 ON LAT (“Fagundes”) to show the applicant cannot rely only on her belief that her injuries prevent suitable employment—she must also lead medical evidence that shows she meets the disability test.
13In reply, the applicant submits the respondent’s notices never raised the issue of Schedule compliance as a reason for denial. The applicant asserts that the respondent denied the applicant’s IRB because she did not meet the “substantial inability” and “complete inability” tests. The applicant goes on to provide multiple examples of how she made all reasonable efforts to comply with the Schedule, and argues that barring payment of an IRB on the basis of non-compliance would not provide a just outcome that is consistent with the consumer protection purpose of the Schedule.
14The parties were silent as to whether the applicant met the first part of the IRB test, and I find the applicant did not lead evidence in this regard. While the applicant’s submissions indicate she worked 30 hours per week as a cleaner at a university hospital since November 5, 2019, and up until March 11, 2020, she did not point to evidence to support this claim. In my view, much of the applicant’s submissions focus on challenging and diminishing the respondent’s position instead of leading evidence that proves her IRB entitlement. This is not helpful to the applicant’s case because she bears the evidentiary onus here, not the respondent. Put differently, disproving the respondent’s evidence does not establish the applicant has proven her case.
15In my view, the OCF-3 completed by Dr. Alija in April 2020 is not sufficient to show the applicant meets the pre-104-week IRB test. While Dr. Alija’s opinion was that the applicant suffered a substantial inability to perform her essential tasks of her employment, I was not pointed to the medical evidence that Dr. Alija relied on to inform his opinion. The applicant did not direct me to evidence—such as an employer’s confirmation form (“OCF-2”), job description, or otherwise—that established what the essential tasks of her employment as a cleaner were in the 52 weeks leading up to the accident, and I have no indication of what work tasks, if any, Dr. Alija considered when informing his opinion of the applicant’s disability. Further, Dr. Alija indicated the applicant’s disability would endure up to 12 weeks, and the applicant did not point to any follow-up investigations or opinions by Dr. Alija after this time and particularly during her claim period. While the applicant did direct me to Dr. Alija’s May 2020 opinion that the applicant still could not work, this was unpersuasive because it followed just eight weeks post-accident and prior to the end of the applicant’s 12-week disability period. I also placed little weight on Dr. Alija’s support of the applicant’s unsuccessful disability application to the Canada Pension Plan in February 2022 because she failed to establish how this is relevant to her IRB claim.
16The applicant’s case is further hampered by the lack of medical opinions and evidence pertaining to her IRB eligibility from the time her claim period starts 17 months after the accident in August 2021. The applicant directs me to the December 2020 IE report of Dr. Marchuk to show he, like Dr. Alija, determined she was “substantially unable” to work. However, this too is well before the claim period starts and, in any event, the applicant did not pinpoint where to locate this evidence in Dr. Marchuk’s 12-page report. The Tribunal cannot be expected to comb through reports to find the evidence the parties rely on to make their cases. The CCRO for this matter requires the parties to make specific reference to the evidence and law by tab and page number. As the applicant did not provide page numbers to efficiently and effectively pinpoint her evidence, I chose to not review this evidence as part of my analysis.
17The applicant’s submissions failed to direct me to medical opinions or evidence that support her submissions on the interplay between her physical and psychological injuries. I decline to undertake this analysis myself as a matter of procedural fairness because the parties bear the onus of leading evidence that supports their arguments, not the Tribunal. In this case, the applicant did not point to evidence of psychological symptomology, assessment, or treatment that occurred within the first 104 weeks after the accident, let alone a relationship to her physical injuries.
18On a balance of probabilities, I find this evidence falls short of proving the applicant’s IRB eligibility during the first 104 weeks after the accident. Given that the applicant has not proven her case, I find it unnecessary to consider the respondent’s arguments as they pertain to compliance with sections 58(2) and 33(1) of the Schedule.
After the first 104 weeks that followed the accident (from March 12, 2022, and onwards)
19I find the applicant has failed to demonstrate she is entitled to an IRB after the first 104 weeks following the accident.
20Section 6(2)(b) of the Schedule lays out the eligibility criteria for an IRB after the first 104 weeks of disability. This requires the applicant to show she suffers, as a result of the accident, a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
21Neither the applicant nor the respondent differentiated their submissions on the basis of the two IRB periods. Going by the dates of reports included in the applicant’s submissions, I find she relies on the post-March 2022 records of Dr. Alija; the March 2022, February 2023, and March 2023 reports of Dr. Marchuk; the November 2022 and March 2023 reports of Dr. Jennifer Out (psychologist); and the treatment records of Dr. Amy Bax (psychologist).
22I was not directed to evidence that shows Dr. Alija determined the applicant was “medically unable to participate in employment activities for up to 12 months” in a “January” Ontario Works application. Even if the applicant had pointed me to this evidence, I would not place a great deal of weight on it because the applicant made no submissions on the outcome of the application or how the test for disability on an Ontario Works claim is relevant to the post-104-week test for an IRB. I agree with the respondent’s position that, in any event, the applicant’s pursuit of an Ontario Works disability benefit is not determinative of whether the applicant meets the disability test as outlined in the Schedule.
23I am not persuaded by Dr. Out’s IE report of June 2, 2022. The applicant submits that Dr. Out offers diagnoses of major depressive disorder and a motor vehicle-related phobia, however, does not pinpoint this evidence to substantiate her claim. Even if the applicant did support her diagnoses with evidence, I find this would still fall short of the applicant’s evidentiary onus. This is because Dr. Out’s opinion—as conveyed in the applicant’s submissions—is that the applicant does not meet the post-104-week IRB test. Further, the applicant does not direct me to evidence that establishes a relationship between diagnoses and disability (i.e., the functional implications of her symptomology on her ability to work). I make the same finding for Dr. Marchuk’s evidence, where the applicant does not pinpoint Dr. Marchuk’s diagnoses or analyses of the applicant’s impairments. In any event, the applicant’s submissions note that Dr. Marchuk’s medical opinion of her disability was the same expressed by Dr. Out (i.e., the applicant did not meet the post-104-week IRB test). Further, the applicant did not point me to a medical opinion in these reports that spoke to an interplay between her physical and psychological condition.
24I place little weight on Dr. Bax’s handwritten treatment notes for similar reasons. The applicant’s submissions note that she started 12 sessions of psychological treatment with Dr. Bax in July 2023. However, submissions are not evidence, and the applicant did not pinpoint evidence in Dr. Bax’s notes that supports her IRB claim. While the applicant indicates a relationship exists between this treatment and the accident, she did not point to the corresponding OCF-18 to show it “identifies collision-related psychological issues as ‘depressive episode’ and ‘specific (isolated) phobias’,” or that treatment “focuses on cognitive behavioural skills to manage symptoms of depression, anxiety, driving anxiety, and ‘difficulty coping due to widespread disruptions of her life due to the … accident.”
25When all this evidence is taken together on a balance of probabilities, I find the applicant has failed to meet her evidentiary onus per section 6(2)(b) of the Schedule to prove she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
The applicant’s entitlement to the disputed OCF-18s
26I find the applicant has failed to show that the two disputed OCF-18s (i.e., one for chiropractic services and the other for occupational therapy) are reasonable and necessary.
27To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant must show, 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.
28The applicant submits her treatment providers diagnosed multiple sprain and strain-type accident-related injuries in addition to various pain syndromes and psychological injuries. The applicant also says that the treatment proposed by her practitioners is not inconsistent with what the respondent’s assessors recommend. The applicant relies on Dr. Alija’s records, the emergency records of the London Health Sciences Centre, the treatment records of Preferred Rehab physiotherapy, and the April 2021 nerve conduction study and electromyography report of Dr. Tugalev (physiatrist).
29The respondent made no discernable submissions on the disputed OCF-18s, other than to say the applicant has not met her onus to show on a balance of probabilities that the disputed OCF-18s are reasonable and necessary as a result of the accident.
30I accept that Dr. Alija diagnosed sprains and strains in the applicant’s neck, right shoulder and low back as documented in the OCF-3 he completed in April 2020. However, I do not agree these injuries are corroborated in the emergency records of the London Health Sciences Centre. While the applicant submits she attended a hospital for pain in her upper back, right arm, and abdomen, she does not indicate where to find this evidence in the 23 pages that comprise tab 2 of her evidence brief. Similarly, the applicant does not pinpoint evidence of Dr. Alija later observing tenderness in her neck or shoulders or offering diagnoses of sprain or whiplash in the 57 pages that comprise tab 3 of her evidence brief. The applicant speaks to more of Dr. Alija’s evidence in her submissions but does not cross-reference this by tab or page number to her evidence brief. For example:
i. I am not directed to evidence that supports the applicant’s claim of persisting pain throughout the 2020 spring season;
ii. The applicant’s submissions about Dr. Alija diagnosing myalgia back pain in September 2020, and his ongoing recommendations for physiotherapy and massage therapy to treat whiplash in December and February 2021 are unsubstantiated as I was not directed to the supporting evidence;
iii. The applicant failed to point me to Dr. Alija’s physiatrist referral, or Dr. Alija’s subsequent diagnosis of regional pain syndrome—no dates were provided for these events;
iv. None of the applicant’s diagnostic tests (i.e., the February 2021 x-ray, the MRI completed in November 2021, and the undated ultrasound and x-ray of the right shoulder) were pinpointed in the applicant’s submissions, although the applicant’s disclosure that they all produced unremarkable results does not support entitlement to the OCF-18s in dispute; and
v. The applicant’s submissions about worsening shoulder and back pain from November 2022 to February 2023—and Dr. Alija’s corresponding diagnoses of myalgia and cervicalgia—were not pinpointed in the applicant’s evidence brief.
31Similarly, Dr. Tugalev’s physiatry report did not support the applicant’s case because I was not directed to what pages of the report document diagnoses of whiplash injury with myofascial pain syndrome, right shoulder tendonitis, or a possible complex regional pain syndrome of the right arm. The applicant also failed to pinpoint Dr. Tugalev’s observations of decreased range of motion in the applicant’s neck, right shoulder pain and bi-lateral tenderness over her shoulder muscles, and right arm pain. In any event, the applicant’s submissions say Dr. Tugalev recommended physiotherapy, which is inconsistent with the chiropractic treatment and occupational therapy proposed by the OCF-18s in dispute.
32Speaking further to the disputed OCF-18s, the applicant failed to point to either in her submissions and made no arguments concerning (1) what injuries they aim to address; (2) what treatment goals they pursue; (3) whether the treatment goals could be reasonably achieved by the proposed chiropractic services and occupational therapy; and (4) the reasonableness of the costs. The applicant’s submissions offer no rationale for the reasonableness and necessity of these OCF-18s, and I am not pointed to a recommendation for occupational therapy or chiropractic services by any of the health practitioners relied upon by the applicant. The treatment records of Preferred Rehab physiotherapy provide no further insight. These records were not referred to in the applicant’s submissions other than to say she commenced physiotherapy in October 2020 and that her whiplash diagnosis was later deemed to be worse owing to neurological features. The applicant did not pinpoint this evidence in the treatment records of the service provider, and I therefore gave this little weight.
33In my view, the applicant’s failure to support her submissions with evidence in accordance with the procedures outlined in the CCRO greatly hampers the applicant’s position. I find she is not entitled to the two OCF-18s in dispute because she failed to show they are reasonable and necessary.
Interest
34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. In this case, there are no overdue benefits, so interest does not apply.
ORDER
35The applicant is not entitled to an IRB or to either of the disputed OCF-18s. No interest is payable. The application is dismissed.
Released: October 30, 2024
__________________________
Michael Beauchesne
Adjudicator