Licence Appeal Tribunal File Number: 22-010850/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:
Anthony A. Gall
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Ryland MacDonald, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Anthony A. Gall, the applicant, was involved in an automobile accident on October 16, 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 the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 16, 2020 to date?
Is the applicant entitled to $5,749.23 for psychological services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (“plan”) dated March 17, 2022?
Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by Scarborough Medical Centre in a treatment plan dated March 31, 2021?
Is the applicant entitled to the assessments proposed by Q Medical, as follows:
i. $2,486.00 for an attendant care assessment, in a treatment plan dated March 31, 2021;
ii. $2,617.65 for a neurological assessment, in a treatment plan dated March 31, 2021; and
iii. $2,576.40 for a chronic pain assessment, in a treatment plan dated May 17, 2021?
- Is the applicant entitled to the assessments proposed by E Clinic United Healing, as follows:
i. $1,950.00 for an in-vehicle driving assessment, in a treatment plan dated March 9, 2022; and
ii. $1,050.00 for a nutritional assessment, in a treatment plan dated March 9, 2022?
Is the applicant entitled to $3,270.78 for replacement of damaged items, submitted on an expense claim form (OCF-6) dated June 22, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from October 16, 2020 to date;
4The applicant is not entitled to $5,749.23 for psychological services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (“plan”) dated March 17, 2022;
5The applicant is not entitled to $1,995.00 for a psychological assessment, proposed by Scarborough Medical Centre in a treatment plan dated March 31, 2021;
6The applicant is not entitled to $2,486.00 for an attendant care assessment, proposed by Q Medical, in a treatment plan dated March 31, 2021;
7The applicant is not entitled to $2,617.65 for a neurological assessment, proposed by Q Medical, in a treatment plan dated March 31, 2021;
8The applicant is not entitled to $2,576.40 for a chronic pain assessment, proposed by Q Medical, in a treatment plan dated May 17, 2021;
9The applicant is not entitled to $1,950.00 for an in-vehicle driving assessment, proposed by E Clinic United Healing, in a treatment plan dated March 9, 2022;
10The applicant is not entitled to $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing, in a treatment plan dated March 9, 2022;
11The applicant is not entitled to $3,270.78 for replacement of damaged items, submitted on a claim form (OCF-6) dated June 22, 2021;
12As there is no overdue payment of benefits, therefore the applicant is not entitled to interest pursuant to section 51 of the Schedule.
13The application is dismissed.
ANALYSIS
Income Replacement Benefits (IRBs)
14The applicant is not entitled to IRBs.
15The applicant is claiming IRBs from October 16, 2020 to date.
16The respondent, however, submitted a letter dated March 2, 2021 which advised the applicant that his IRB claim was approved at a weekly rate of $400.00 and was paid retroactively to October 23, 2020. The respondent further submits that the benefit was paid until June 26, 2022 and the time period in dispute begins on June 27, 2022.
17The applicant does not acknowledge or dispute that he received IRBs from October 23, 2020 to June 26, 2022. Therefore, I accept the respondent’s submissions and find the correct period in dispute for the applicant’s claim for IRBs is from June 27, 2022 to date.
18As the period in dispute regarding the applicant’s claim for IRBs is from June 27, 2022 to date, the period in dispute covers both the pre-104 week and post-104 week period after the accident.
Pre-104 IRB
19The applicant is not entitled to IRBs from June 27, 2022 to October 15, 2022, within the pre-104 period.
20To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident 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 their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
21The applicant submitted that his ongoing physical and psychological injuries prevent him from returning to employment. Included with his physical injuries is a medical condition involving the flattening of the pituitary glad and idiopathic intracranial hypertension which was discovered as a result of the CT Scan immediately following the accident, which the applicant asserts is a result of the accident. The applicant submits that the medical records, such as the report of Dr. A. Tam, physiatrist, dated December 15, 2021, demonstrate he is unable to perform the essential duties of his pre-accident employment.
22The respondent does not dispute that the applicant was working at the time of the accident. However, the respondent submits that the applicant has not provided any documentation or information as to what the applicant’s pre-accident employment duties were and therefore the respondent has been unable to determine if the applicant’s ongoing entitlement to IRB. The respondent relies on the report of Dr. A. Tam, physiatrist, dated December 15, 2021 which indicates the applicant did not suffer from a substantial inability to engage in the essential tasks of his employment.
23I note the records of Dr. Cunningham, the applicant’s family physician, document the applicant’s accident-related injuries and ongoing pain, recommends continuing with chiropractic and physiotherapy treatment, and stresses the importance of the applicant being active. On April 19, 2021 Dr. Cunningham completed an OCF-3 and opined the applicant could not return to work at that time. However, I find the medical records do not establish that the applicant suffered an impairment that caused him to substantially be unable to complete the essential tasks of his pre-accident employment after June 27, 2022. I have been directed to the Physiatry Medical Evaluation Report, dated December 15, 2021, and the Physiatry Paper Review dated December 15, 2022 both authored by Dr. Tam. I am not persuaded by the applicant’s submission that Dr. Tam stated that the applicant has functional limitations which prevent him from returning to his job as a pool installer. I am persuaded by Dr. Tam’s conclusion that the applicant did not suffer a substantial inability to complete the essential tasks of his pre-accident employment, and that he should engage in a gradual return to work plan. I have not been directed to persuasive evidence that disproves Dr. Tam’s opinion. For these reasons, I find the applicant is not entitled to pre-104 weeks IRBs.
Post-104 IRB
24The applicant is not entitled to IRBs from October 16, 2022 to date.
25The respondent submits that documentation has been requested from the applicant pursuant to s. 33(6) of the Schedule, but these documents have not been received. As such, respondent submits it is not liable to pay IRBs during the period of non-compliance. The respondent relies upon a letter dated March 27, 2023 in which the respondent requested employment records, Income Tax Returns, the record of employment from Clear Choice Pools, and updated medical records.
26The applicant has not provided reasons in his submissions as to why the documents requested in the March 27, 2023 letter and in the case conference report and order, have not been provided.
27Section 33(1) of the Schedule allows the respondent to request any information reasonably required to assist in determining the applicant’s entitlement to a benefit. I find that the documents requested by the respondent in the March 27, 2023 letter are relevant to the determination of both eligibility and quantum of the IRB.
28In the absence of evidence to the contrary, I accept the respondent’s submissions that the applicant is not in compliance with s. 33(1) and find the respondent is not liable for IRB payments from April 10, 2023 to date.
29Taking the s.33(1) non-compliance into account, the time period in dispute for the post-104 IRB is reduced to October 16, 2022 to April 10, 2023.
30To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
31The applicant furthers his position that his ongoing physical and psychological injuries prevent him from returning to employment.
32The respondent’s position is that the applicant has not discharged his burden in proving the is entitled to post-104 IRBs.
33I find that the applicant has not proven on a balance of probabilities that he meets the test for post-104 IRBs because I have not been directed to evidence as to what is the applicant’s education, training or experience, and without such evidence, I am unable to determine whether he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited.
34For the reasons stated above, I find the applicant has not proven beyond a balance of probabilities that he is entitled to IRBs from June 27, 2022 to date.
35To 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. As for an assessment, the applicant must show that it is reasonable and necessary to investigate a condition. The applicant also must prove that the treatment being recommended is for impairments sustained in the car accident.
a) Psychological assessment
36I find the treatment plan was approved by the respondent on January 10, 2022 and is no longer in dispute.
37I do not have before me any submissions from the applicant regarding the treatment plan for a psychological assessment proposed by Scarborough Medical Centre dated March 31, 2021, as listed as an issue in dispute. I have not been directed to a letter of denial for this treatment plan.
38The respondent’s position is that the treatment plan for a psychological assessment prepared by Harinder Mrahar of Scarborough Medical Centre dated March 30, 2021, was approved on January 10, 2022, and therefore no dispute exists.
39I note that the psychological assessment report of Harinder Mrahar of Scarborough Medical Centre dated April 30, 2021 is in evidence. I note the report has been referred to numerous times by the applicant in his submissions, including in support of the of the treatment plan for psychological serves proposed by E Clinic United Healing dated March 17, 2022. I agree with the respondent that there is no dispute for this treatment plan because the applicant has been silent.
40I find the treatment plan for a psychological assessment dated March 30, 2021 was found to be reasonable and necessary by the respondent and was approved on January 10, 2022. For this reason, the treatment plan is no longer in dispute.
b) Psychological services
41I find the applicant is not entitled to the disputed treatment plan for psychological services.
42I note that the disputed treatment plan for psychological services dated March 17, 2022 in the amount of $5,749.23 is not in evidence before me, and I cannot reference the treatment goals in said treatment plan.
43The applicant relies on the psychological progress report prepared by Kamleshkumar Patel, registered social worker in support of the disputed treatment plan. I note the psychological progress report is dated March 8, 2022 and references an attached OCF-18 for a full psychological assessment. The psychological progress report prepare by Kamleshkumar Patel does not recommend additional treatment sessions; it only references a psychological assessment in order to determine the applicant’s rehabilitation needs and to guide his treatment.
44The respondent submits an OCF-18 in the amount of $4,089.95 for 16 psychotherapy sessions was approved by the respondent on January 11, 2022, and incurred between January 17 and March 10, 2022. It is the respondent’s position that the applicant has not met his burden to prove further psychological services are reasonable and necessary.
45It is not the responsibility of the Tribunal to make the applicant’s case. I find that a claim for entitlement to medical or rehabilitation accident benefits must be accompanied by a treatment plan.
46I find the applicant has not proven that the psychological treatment plan is reasonable or necessary on a balance of probabilities because I do not have before me supporting medical evidence. Therefore, the applicant is not entitled to the proposed psychological services.
c) Attendant Care assessment
47I find the applicant is not entitled to an attendant care assessment.
48The treatment plan dated March 31, 2021 sought an attendant care assessment. The goals of the treatment plan are to identify any limitations and the level of impairment as it relates to the applicant’s ability to engage in activities of daily living safely and independently.
49The applicant relies on the psychological assessment of Farzaneh Pariman, psychological associate, dated April 30, 2021 and clinical notes and records of Dr. Stephanie Johnston, chiropractor.
50The respondent relies on the physiatry report of Dr Tam, in which it is reported that the applicant is independently completing his self-care tasks.
51I note the treatment plan indicates the applicant experiences pain and has difficulty with the activities of daily living. The applicant relies on the psychological assessment of Ms. Pariman who notes in her report that the applicant completes his personal care tasks with greater difficulty and pain in comparison to before the accident. However, I find this report to not be persuasive because Ms. Pariman does not recommend an assessment for attendant care and because there are medical records that contradict the applicant’s need for attendant care. I am persuaded by Dr. Tam’s report which contradicts the need for an attendant care assessment because the applicant self-reports being capable of independent self care tasks. I am also not persuaded because there is no supporting evidence in the records from Dr. Cunningham, who does not mention the applicant having difficulty with personal care or activities of daily living.
52In the notes and records of Dr. Stephanie Johnston, chiropractor, between November 5, 2020 and April 1, 2021, there is no mention of the applicant having difficulty with personal care or activities of daily living, and the applicant often reports his symptoms were improving. I do note that on December 7, 2020, the applicant reported that he was doing well, he was doing a lot of walking in the forest, and that he had “caught” a deer. On December 21, 2020, the applicant reported that he helped move his hot tub, and on March 15, 2021, he reported that he had helped his son move on the weekend. Therefore, I find the applicant’s self-reports do not support an investigation of the applicant’s need for attendant care.
53I find the applicant has not met his burden of proof, on a balance of probability that the treatment plan is reasonable or necessary.
d) Neurological assessment
54I find that the applicant has not proven on a balance of probabilities that the neurological assessment is reasonable or necessary.
55The treatment plan dated March 31, 2021 sought a neurology assessment to determine the effect of neurological dysfunction on the applicant’s ability to function and perform activities of daily living, as well as determine further investigation, treatments and recommendations.
56The applicant submits the neurological assessment is needed for his intracranial issues affecting the pituitary gland as well as the potential neurological impacts from the accident.
57The respondent submits that the neurological assessment is duplicative of the neurological consultation that occurred on October 20, 2021 and February 2, 2022, under the care of an OHIP funded Neurologist, and the disputed treatment plan is not reasonable or necessary.
58I was directed to the clinical notes and records of Dr. Cunningham dated December 9, 2020, in which the applicant was referred to St. Michael’s Hospital for a neurology consult. The treatment plan in dispute was submitted on March 31, 2021, while Dr. Cunningham’s referral was in progress. The applicant saw Dr. Julian Spears, neurologist on October 20, 2021 and February 2, 2022, and was discharged stating that a treatment plan is not necessary and returned to the care of Dr. Cunningham by way of a consultation report. This consultation was covered by OHIP and was at no cost to the applicant. I find that it is evident from Dr. Cunningham’s notes that he was aware of the applicant’s ongoing complaints, however, no further referrals were made. I do not have before me any submissions from the applicant as to why Dr. Spears neurological assessment was not sufficient. I find the treatment plan for a neurological assessment is not reasonable or necessary because a neurological assessment by Dr. Spears was completed on October 20, 2021 and February 2, 2022 and I have not been directed to evidence that supports a second neurological assessment is reasonable or necessary.
59Therefore, the applicant is not entitled to the proposed neurological assessment.
e) Chronic pain assessment
60I find the applicant is not entitled to a chronic pain assessment.
61I note that the treatment plan in dispute is identified in the case conference report and order as dated May 17, 2021 in the amount of $2,576.40. In evidence there are two treatment plans for chronic pain assessment: 1) a treatment plan dated May 12, 2021 in the amount of $2,594.48, and 2) a treatment plan dated March 7, 2022 in the amount of $2,576.40. In the respondent’s submissions the chronic pain assessment is not identified by date, however, the amount identified is $2,617.65. It is unclear to me which of these treatment plans is in dispute.
62In both of the above noted treatment plans for a chronic pain assessment the goals are to determine the mechanism of pain through documentation of pain onset, location, quality, progression, character, intensity, variability, frequency, duration, migration pattern, precipitating and aggravating factors.
63The applicant submits that he is at risk of developing a chronic pain syndrome and further medical investigation has been recommended by his treating chiropractor, Stephanie Johnston. In his submissions, the applicant relies heavily on Dr. Tam’s reports which were conducted in December 2021 and December 2022 in support of the treatment plan for a chronic pain assessment.
64The respondent submits that a treatment plan for multidisciplinary assessment and treatment was approved on March 25, 2022, as recommended by Dr. Tam, in his assessment report dated December 15, 2021, and that a chronic pain assessment would be duplicative of Dr. Tam’s assessment. In the alternative, the respondent submitted that an OHIP funded program was available to the applicant by referral from Dr. Cunningham.
65I was directed to the physiatry report of Dr. Tam dated December 9, 2021, in which it was recommended that the applicant be referred to a multi-disciplinary pain program. Dr. Tam’s assessment included a physical examination. Dr. Tam opined that the family physician could make a referral for an OHIP funded pain program for treatment. I do not have submissions before me to explain why Dr. Tam’s assessment was not sufficient, even though, as a result of Dr. Tam’s assessment a multi-disciplinary pain program was approved. I find that a further chronic pain assessment would be duplicative and therefore not reasonable or necessary because as a result of Dr. Tam’s assessment, the respondent approved a treatment plan for multidisciplinary pain management program.
66For the reasons above, I find the applicant has not proven on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable and necessary.
f) In-vehicle driving assessment
67I find the applicant is not entitled to an in-vehicle driving assessment.
68The treatment plan dated March 8, 2022 sought an in-vehicle evaluation assessment to identify any psychological, functional limitations and the level of impairment as it relates to the applicant’s ability to travel in a vehicle.
69The applicant relies on the E-Clinic notes, in which the applicant’s driving and vehicular anxiety is recorded, to support the treatment plan. I note the E-Clinic notes include the psychological assessment of Ms. Farzaneh Pariman dated April 30, 2021, the psychological progress report by Kamleshkumar Patel, registered social worker dated March 10, 2022, and the clinical notes and records of K. Patel from January 17, 2022 to March 10, 2022.
70The respondent submits the records from E-Clinic should be given no weight because they lack any details specific to the applicant. Furthermore, Dr. Cunningham has not documented any driving anxiety or avoidance.
71I agree that the records of Dr. Cunningham do not contain reference to the applicant’s driving anxiety and as such these records do not support an in-vehicle assessment. The psychological assessment of Ms. Pariman initially identifies the applicant’s driving anxiety which is already addressed as part of the previously approved psychological treatment plan goals. I find that the in-vehicle driving assessment is not supported by the psychological assessment because it is not recommended within the report. Furthermore, I find the progress report of Kamleshkumar Patel is not persuasive because there is no mention in the session notes of the driving anxiety being addressed during treatment sessions. The applicant has not demonstrated through the evidence how the driving anxiety continues to be identified in the progress report when it has not been discussed with the applicant, and for this reason, I give the E-Clinic notes little weight.
72I find that on a balance of probabilities, the applicant has not proven the in-vehicle assessment is reasonable or necessary.
g) Nutritional assessment
73I find the treatment plan for a nutritional assessment is not reasonable or necessary.
74The treatment plan dated March 8, 2022 sought a nutritional assessment to acquire, validate, and interpret data needed to identify nutritional-related problems, their root causes, and their relevance to overall health status post accident.
75The applicant submits this treatment plan is essential due to the applicant’s limited capacity for self-care and to support the applicant’s physical and psychological health and recovery. The applicant has not directed me to evidence in support of these submissions.
76The respondent submits the applicant has not led evidence to support the treatment plan.
77The applicant’s ability for self-care is addressed at paragraphs 50 and 51 above. I find that within the evidentiary references to the applicant’s self-care tasks, nutrition is not mentioned beyond the applicant’s appetite being reduced and his weight gain due to lower levels of activity. I agree with the respondent that the nutritional assessment is not reasonable or necessary because there is no medical support for the treatment plan.
78I find for the reasons above the applicant has not proven on a balance of probabilities that the nutritional assessment is reasonable or necessary.
Damaged Items
79I find the applicant is not entitled to reimbursement for the submitted OCF-6 for damaged items.
80Section 24 of the Schedule states that the insurer shall pay for all reasonable expenses incurred by or on behalf of an insured person in repairing or replacing clothing that was worn at the time of the accident, prescription eyewear, dentures, hearing aids, prostheses or other medical or dental devices that were lost or damaged as a result of the accident. The applicant has the onus to prove the items for which reimbursement is being sought fall within s. 24.
81I do not have submissions before me from the applicant regarding the damaged items for which an OCF-6 was submitted on June 22, 2021. I find the applicant has not met his burden to prove on a balance of probabilities that the OCF-6 falls under s. 24 of the Schedule because his submissions and evidence are silent on this issue.
Interest
82As there is no overdue payment of benefits, therefore I find the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
83For the reasons set out above, I find the following:
i. The applicant is not entitled to income replacement benefits.
ii. The applicant is not entitled to the treatment or assessment plans.
iii. The applicant is not entitled to reimbursement for damaged items.
iv. The applicant is not entitled to interest.
84The application is dismissed.
Released: December 6, 2024
Tami Cogan
Adjudicator