Ayodeji-Dinall v. Continental Casualty Insurance Company, 2024 CanLII 126321

Citation: Ayodeji-Dinall vs. Continental Casualty Insurance Company, 2024 ONLAT 23-001539/AABS

Licence Appeal Tribunal File Number: 23-001539/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:

T'Neal Ayodeji-Dinall

Applicant

And

Continental Casualty Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Adam Moftah, Counsel

For the Respondent: Laura Emmett, Counsel

HEARD: By way of written submissions

OVERVIEW

1T'Neal Ayodeji–Dinall, the applicant, was involved in an automobile accident on July 25, 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, Continental Casualty Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2I have been asked to decide the following issues:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 1, 2020 to July 25, 2022?
2. Is the applicant entitled to the following treatment plans (“OCF-18s”) for chiropractic treatment proposed by Revive Health Centres Inc.: (i.) $1,289.02 dated January 27, 2021; (ii.) $1,508.37 dated April 22, 2021; (iii.) $1,423.76 dated November 13, 2021; and (iv.) $1,423.76 dated February 19, 2022;
3. Is the applicant entitled to the following OCF-18s proposed by Network Health Assessment Rehabilitation Centre: (i.) $1,606.25 for occupational therapy dated February 5, 2021; and (ii.) $2,314.13 for psychological treatment dated February 22, 2021.
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After considering both parties’ submissions and all the evidence I find the applicant has not established entitlement to any of the benefits in dispute, interest or an award.

ANALYSIS

Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 1, 2020 to July 25, 2022?

4The applicant is not entitled to payment of IRBs for the time period claimed.

5Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

6Prior to the accident, the applicant was employed as a truck driver for a junk removal company. The essential tasks of his employment included driving to residential homes and businesses, and physically removing junk and ensuring items were properly recycled, donated or disposed of. His job required him to lift items up to 50 lbs individually and heavier items with a co-worker. He worked full-time from Monday to Friday, from 8:00 to 5:00 p.m. The physical demands of his job are classified as medium to heavy work and required frequent sitting, balancing, climbing stairs, walking, repetitive movement, stooping, bending, lifting, reaching and pulling.

7The applicant argues that he sustained an impairment as a result of the accident, which resulted in a substantial inability to perform the essential tasks of his employment. Overall, his submissions were unclear regarding what particular impairment resulted in his inability to work. However, I note that the medical records refer to him sustaining soft tissue injuries to his back, shoulder and neck, a psychological impairment and a concussion which he maintains resulted in neurological and cognitive impairments. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Lin, family doctor, two disability certificates (“OCF-3s”) prepared by Dr. Sugar, chiropractor dated August 9, 2020 and September 16, 2021, and the psychological report of Dr. Kershner dated February 12, 2021.

8The respondent submits that the applicant has not met his onus of proving entitlement to the benefit. It relies on the insurer examination (“IE”) reports of Neil Edwards, kinesiologist, dated January 14, 2021, Dr. McCutcheon, psychologist, dated February 2, 2021, and Dr. Rabinovitch, physiatrist, dated April 5, 2021. These assessors determined that the applicant did not have any physical or psychological impairments resulting in any functional limitations as a result of the accident that would result in a substantial inability to perform the essential tasks of his employment. Further, the respondent asserts that the applicant is not eligible for IRBs because he did not report his income to Revenue Canada from 2017 to date. Therefore, he is precluded from payment of an IRB pursuant to s.4(5) of the Schedule.

9I find the applicant has not met his onus of proving on a balance of probabilities that he meets the disability test for IRBs for the time period claimed for the following reasons.

10First, I find the family doctor’s CNRs inconsistent regarding whether the applicant sustained any accident-related impairment which interfered with his ability to perform the essential tasks of his employment. For example, the first post-accident CNR, dated October 30, 2020, notes that the applicant reported having back, arm and neck pain. He advised his doctor that he had been let go from his job as a driver a week after the accident. The note states that the applicant’s “pain is not severe enough to warrant meds. Sleeping well at night, mild pain. Full ROM neck and back.” I find this CNR does not demonstrate that the applicant’s accident-related injuries prevented him from working because the note references mild pain which did not restrict his range of motion. Further, the note does not indicate that the applicant could not work as a result of these complaints. Moreover, the applicant’s argument is contradicted by a letter of good health authored by his family doctor two weeks later in support of him obtaining another job as a truck driver.

11I also find that there are significant gaps in the family doctor’s CNRs noting any accident-related complaints because the next time the applicant mentioned the accident was September 17, 2021, almost one-year later. On that visit he complained of pain in his shoulders, chest, back and neck and headaches, dizziness and slow processing speed. Further, on October 7, 2021, he first reports experiencing psychological symptoms and expresses poor mood and suicidal ideation. Of significance, the applicant visited his family doctor on six occasions between October 2020 and September 2021, where he reports no accident-related issues. Because of the inconsistencies and gaps in the family doctor’s CNRs I find there is insufficient evidence to link the applicant’s cognitive and psychological complaints to the accident. Nor has the family doctor rendered an opinion that the applicant is unable to work as a result of any accident-related physical, psychological or cognitive impairment. In addition, the CNRs of the applicant’s treating clinic are unhelpful in establishing that the applicant had any accident-impairments which interfered with his ability to work because they are not legible.

12Second, I find the applicant’s self-reported complaints to his family doctor about slow processing speed, memory and cognition are inconsistent with the psychological reports of both parties’ assessors which were done two weeks apart. For example, Dr. Kershner’s report notes that the applicant’s memory and concentration throughout the interview appeared intact despite the applicant reporting changes in memory and concentration. Dr. McCutcheon’s report notes that the applicant reported no decline in his ability to focus or concentrate and no issues with memory and then provided examples of the applicant’s cognitive function. For example, the report noted he has no difficulty focusing while watching movies, using his cellphone or when he tries to read, and he does not forget appointments, or misplace items. For these reasons, I am not persuaded that the applicant has any cognitive or psychological impairments which has resulted in a substantial inability for him to perform the essential tasks of his employment.

13For the same reason, I do not find the psychological report of Dr. Kershner persuasive because of the large gap in the medical records where no psychological complaints are made. Dr. Kershner diagnosed the applicant with Adjustment-Disorder with anxiety and symptoms of depression; Specific Phobia; and Somatic Symptom Disorder, with predominant pain. Of significance, Dr. Kershner and Dr. McCutcheon both administered the Beck Depression Inventory (“BDI”) and Beck Anxiety Inventory (“BAI”) two weeks apart which also yielded vastly inconsistent results. I find this to be another example of why the applicant’s self-reports about his symptoms and impairments are not dependable. In addition, Dr. Kershner does not discuss what the essential tasks of the applicant’s employment are and explain how his psychological impairment has resulted in a substantial inability to perform these tasks. As a result, I have given Dr. Kershner’s report little weight.

14Third, the only evidence before me which supports that the applicant has a substantial inability to carry out the essential tasks of his employment was the OCF-3s completed by Dr. Sugar. While the OCF-3s may support that the applicant meets the disability test, I have given these forms little weight because of the many inconsistencies and gaps in the medical record before me.

15In contrast, the IE reports Mr. Edwards, Dr. McCutcheon and Dr. Rabinovitch address the applicant’s employment in detail, conduct physical examinations and clinical interviews and provide opinions on whether the applicant meets the disability test. These reports provide a thorough analysis of the applicant’s occupation and impairments and render an opinion that the applicant does not suffer a substantial inability to perform the essential tasks of his employment as a result of any accident-related psychological or physical impairment. The applicant pointed out flaws in these assessments because they never investigated his cognitive or neurological complaints. However, I note that the onus is not on the respondent to disprove entitlement to the benefit. I accept the opinions of the IE assessors because the applicant has not submitted sufficient evidence or opinions to refute them.

16Finally, the applicant has not filed income tax returns from 2017 to date. The respondent relies on the Tribunal’s decision in T.S. v. Aviva Insurance Canada, 2020 CanLII 34431 where the adjudicator determined that s. 4(5) of the Schedule establishes that an IRB is calculated on income declared in accordance with the Income Tax Act, and where income has not been reported the IRB calculation is zero. I find this to be another reason why I cannot find in the applicant’s favour because he did not report his income pursuant to s. 4(5) of the Schedule. Since the applicant did not report any pre-accident income there can be no calculation of his IRB. Further, in the absence of an employment file, any financial documents or tax returns, I find the applicant has not proven the IRB quantum or that he sustained an income loss because of the accident.

17For the above-noted reasons, the applicant has not met his onus of proving on a balance of probabilities that he sustained impairments as a result of the accident which resulted in a substantial inability to perform the essential tasks of his employment. Consequently, the applicant is not entitled to payment of an IRB for the time-period claimed.

Is the applicant entitled to the four OCF-18s for chiropractic treatment proposed by Revive Health Centres Inc.?

18The applicant is not entitled to any of the OCF-18s for chiropractic treatment proposed by Revive Health Centres Inc.

19To receive payment for a treatment and assessment plan under s. 14 and 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. The Tribunal has also consistently found that medical treatment is reasonable and necessary if it results in the temporary relief from pain if it leads to improvement in function.

20The applicant argues that all four OCF-18s for chiropractic treatment are reasonable and necessary because past treatment was helpful in reducing his pain, and he cannot attain maximum medical recovery without further treatment.

21The respondent submits that the applicant has not discharged his onus as he has not produced any medical evidence to support a need for any of the disputed OCF-18s because of any accident-related injuries. Further, it maintains that the applicant did not submit any of the disputed OCF-18s as evidence for this hearing which is fatal to his claim because the Tribunal does not know the treatment goals or have an itemized list of the proposed expenses. It relies on the IE report of Dr. Rabinovitch who determined that there was no evidence of a significant musculoskeletal impairment, and that further facility-based treatment is not reasonable and necessary.

22I find the applicant has not met his onus in proving that any of the OCF-18s for chiropractic treatment are reasonable and necessary for the following reasons.

23First, the applicant did not submit any of the disputed OCF-18s as evidence for this hearing, nor did he address the goals of treatment or the cost of same in his submissions. Consequently, there is insufficient evidence before me about the goals of treatment, whether there was improvement from any past treatment or a breakdown of the cost of same. In the past, the Tribunal has requested a party to submit evidence if the adjudicator believes that a party meant to rely on it as evidence but did not due to administrative error. In this case, the applicant had the opportunity to file reply submissions in response to the respondent’s arguments but chose not to. Consequently, I decline to order the applicant to submit the OCF-18s for my consideration.

24Second, as highlighted above, the CNRs of Revive Health Centre were unhelpful in demonstrating whether any of the disputed OCF-18s for chiropractic treatment are reasonable and necessary because they were not legible and did not include any progress reports noting any benefit from past treatment.

25Third, the IE report of Dr. Rabinovitch found no evidence of any significant musculoskeletal impairment and determined that chiropractic treatment was not reasonable or necessary because the applicant did not require any further facility-based treatment. In the absence of any persuasive evidence to the contrary, I accept this opinion.

26For the above-noted reasons, the applicant did not meet his onus in proving on a balance of probabilities that the four OCF-18s for chiropractic treatment are reasonable and necessary.

Is the applicant entitled to the OCF-18s for psychological treatment or occupational therapy recommended by Network Health Assessment Rehabilitation Centre?

27The applicant is not entitled to either OCF-18 for psychological treatment or occupational therapy proposed by Network Health Assessment Rehabilitation Centre.

28The applicant argues that the OCF-18 for a driving anxiety assessment is reasonable and necessary because he reported symptoms of depression and suicidal ideation to his family doctor. Further, Dr. Kershner recommended psychological treatment and Dr. Sugar recommended an in-home assessment in his OCF-3s. The applicant submits that his fatigue and inability to remember appointments demonstrates a need to address his capacity to carry out his activities of daily living. He relies on the family doctor’s CNRs which note that he has missed various appointments due to his poor memory.

29The respondent argues that neither OCF-18 is reasonable and necessary. Moreover, the applicant’s claims must fail because he did not submit either OCF-18 as evidence for this hearing and he showed a lack of insight regarding the issues in dispute because he referred to the OCF-18s as a driving anxiety assessment and occupational therapy when they were for psychological treatment and an in-home assessment. As a result, he has not met his onus because his submissions do not properly address the OCF-18s and there is insufficient evidence about the goals and cost which would be outlined in the OCF-18s.

30I find the applicant has not met his onus in proving that either the OCF-18 for psychological treatment or occupational therapy are reasonable and necessary for the following reasons.

31I agree with the respondent that the applicant’s submissions demonstrate a lack of insight about what either OCF-18 is for because the Tribunal’s order classified the issues as an OCF-18 for psychological services, whereas the applicant’s submissions refer to a driving anxiety assessment, which are two different types of treatment. Moreover, for the reasons already noted above I find the applicant’s psychological complaints are unreliable. In addition, the applicant did not submit the OCF-18 as evidence for this hearing, so I do not have any evidence about the goals or cost of treatment and the applicant did not address this in his submissions.

32In the same vein, the applicant argued that the OCF-18 for occupational therapy is reasonable and necessary because Dr. Sugar recommended an in-home assessment. I note that occupational therapy is treatment and an in-home assessment is to address whether he is entitled to attendant care benefits. The respondent identified the issue as an in-home assessment. Further, the applicant did not submit the OCF-18 as evidence for this hearing so it is unclear to me what the OCF-18 is for. Consequently, I have insufficient evidence before me about whether the goals of the OCF-18 or the cost of same are reasonable and necessary.

33The applicant had the opportunity to file reply submissions addressing the respondent’s arguments or to submit the OCF-18 forms but chose not to.

34For these reasons, the applicant fell far short of meeting his onus in proving that either OCF-18 proposed by Network Health Assessment Rehabilitation Centre is reasonable and necessary.

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

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any payment of any benefits are overdue.

Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

36The respondent is not liable to pay an award.

37The applicant sought an award under s. 10 of Reg. 664. Under s. 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.

38In light of my decision in this matter, the respondent is not liable to pay an award because I have not determined that any benefits were unreasonably withheld or delayed.

ORDER

39For all of the above-noted reasons, I order as follows:

1. The applicant has not established entitlement to any of the benefits in dispute, interest or an award.