Citation: Dinglasan v. TD General Insurance Company, 2023 ONLAT 22-000585/AABS

Licence Appeal Tribunal File Number: 22-000585/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:

Alexander Dinglasan

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Jonathan White, Counsel

HEARD: In Writing

OVERVIEW

1Alexander Dinglasan, the applicant, was involved in an automobile accident on December 11, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an IRB in the amount of $400.00 per week from December 11, 2019 to October 20, 2021?

ii. Is the applicant entitled to $429.00 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated March 5, 2021?

iii. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Dr. Patricia Porco, Mackenzie Medical Rehabilitation Centre in a plan dated March 13, 2021?

iv. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Dr. Nilav Bhowmick, Mackenzie Medical Rehabilitation Centre in a plan dated April 23, 2021?

v. Is the applicant entitled to $2,486.00 for an occupational therapy assessment proposed by Q Medical in a plan, dated November 5, 2021?

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

RESULT

4The applicant is entitled to payment of the IRB.

5The applicant is not entitled to payment of the four treatment plans.

6Interest is owing in accordance with s. 51 of the Schedule.

APPLICANT’S INITIAL SUBMISSIONS

7In its submissions, the respondent asked the Tribunal to exclude any part of the applicant’s initial submissions that exceeded the limit of 12 pages set out in the case conference report and order (released December 14, 2022).

8The applicant did not provide reply submissions.

9I am satisfied that the applicant’s initial submissions do not comply with the page limit set in the case conference report and order. I did not review any part of his initial submissions that exceeded the 12 pages allotted.

ANALYSIS

Applicant is Entitled to Payment of the IRB

10I conclude the applicant has established that he is entitled to payment of the IRB.

11The applicant is seeking an IRB for the period from the accident to October 20, 2021. The applicant’s claim falls within the pre-104 week period, so, for this period, s. 5(1) of the Schedule states that insured persons are entitled to an IRB if they were employed at the time of the accident and sustained an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”.

12To apply this “substantial inability” standard, I must determine:

(a) What were “the essential tasks” of the pre-accident employment?

(b) What, if any, impairments were caused by the accident?

(c) Did at least one of the applicant’s accident-related impairments cause a “substantial inability” to perform these “essential tasks” of employment?

Essential Tasks are Driving and Concentration over an Extended Period

13Starting with “the essential tasks”, in the first report from the respondent’s psychological assessor, Dr. Amena Syed (dated July 27, 2020), the applicant reported his pre-accident work duties as: “picking orders, driving forklift, wrapping and preparing orders, writing and typing documents, reporting to the supervisor, walking, standing, moving, lifting.” He reported working “full-time” for 50 hours per week. A similar account was provided to the respondent’s orthopaedic assessor, Dr. Oleg Safir, for his first report (dated July 27, 2020). Taken together, I find driving and being able to work over an extended period of time made up “the essential tasks” of the applicant’s pre-accident job.

14Turning to the impact of his accident-related impairments, the applicant argued the accident caused him physical, cognitive, and psychological impairments that affected his ability to perform the essential tasks of his job as a forklift driver, including, concentration, endurance, and driving. The respondent disagreed, claiming there was an insufficient evidentiary basis presented by the applicant.

Physical Impairments Do Not Meet the IRB Standard

15I first find that the applicant has not established that he sustained physical impairments that would substantially impair his ability to perform his essential employment activities. I agree with the respondent’s argument that the applicant has not provided sufficient, persuasive medical evidence to support his position.

16Citing the physical impairments and functional limitations found by his orthopaedic assessor, Dr. Michael West (report dated September 12, 2020), the applicant claimed the accident left him physically incapable of performing his pre-accident job. Specifically, Dr. West concluded the applicant’s soft tissue neck and back injuries would meet this standard, and he also diagnosed the applicant with chronic pain. The applicant then highlighted the findings from the respondent’s assessors—namely the second report of Dr. Safir (dated May 12, 2021) and the functional capacity evaluation from Dr. Karen Hudes, chiropractor (dated August 31, 2020)—to further support his position.

17The respondent first submitted that its assessors’ reports did not support the applicant’s position. For example, Dr. Safir found the applicant’s soft tissue injuries did not meet the standard for the IRB, while Dr. Hudes concluded the applicant had the strength needed for this “sedentary” job. The respondent also argued that the virtual assessment from Dr. West should be afforded less weight than the in-person testing done by its assessor, Dr. Safir. The respondent also questioned why the applicant waited several months post-accident to visit his family physician, Dr. Arash Mazaheri. Finally, it highlighted the applicant’s subsequent motor vehicle accident on March 19, 2020.

18To start, I place greater weight on Dr. Safir’s opinion about the applicant’s physical condition than on the opinion of Dr. West. First, Dr. Safir met with the applicant in person, while Dr. West met with the applicant virtually. I accept that the ability to palpate and touch the applicant would result in a more comprehensive understanding of his physical condition. I understand that Dr. West’s virtual assessment was necessitated by the COVID-19 pandemic, but this disparity in the potential efficacy of these testing methods remains.

19Further, since Dr. Safir’s assessment took place on February 19, 2020, and Dr. West’s on September 12, 2020, Dr. Safir was the only one of these two orthopaedic assessors who met with the applicant prior to the subsequent accident on March 19, 2020. Therefore, I accept that Dr. Safir had a better vantage point for assessing the impact of the subject accident on the applicant.

20Finally, though the assessor noted that the applicant “declined most tests due to pain or fear of pain”, Dr. Hudes found largely normal results during testing done on August 17, 2020—less than a month prior to Dr. West’s conducting his assessment. Specifically, Dr. Hudes found the applicant’s range of motion measurements were almost all within normal limits, and all of his strength measurements were reported as “Normal”. This contemporaneous report calls Dr. West’s findings into question.

21Taken together, I prefer Dr. Safir’s initial report and addendum from 2020 to that of Dr. West’s report. As such, I then find Dr. Safir’s opinion on IRB entitlement from his addendum (dated August 31, 2020) is more a compelling account of his physical capacity to perform his pre-accident role than Dr. West’s report. Dr. Safir stated:

In the absence of objective musculoskeletal impairment as a result of the subject motor vehicle accident, there would be no medical contraindication to resuming the pre-accident employment tasks. Accordingly, in my opinion and from a strictly orthopaedic perspective, [the applicant] does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

22I also agree with the respondent’s position that the applicant’s delay in reporting accident-related complaints to the family physician raises questions about the severity of his physical impairments. Despite multiple, pre-accident visits in 2019, the applicant did not visit his family physician to discuss the subject accident until April 22, 2020. The lack of contemporaneous reporting to the family physician raises questions about the severity of the physical impairments caused by the subject accident.

23Dr. Mazaheri did diagnose the applicant with low back strain during the April 2020 visit, but I note that the first reference to the second accident in March 2020 does not appear in the family physician’s notes until a later visit in September 2020. In fact, in the April 22, 2020 note, Dr. Mazaheri wrote: “NO RECENT TRAUMA”. Therefore, even if Dr. Mazaheri did diagnose the applicant with low back strain in April 2020, his apparent lack of knowledge concerning the March 2020 accident raises questions about whether a connection can be drawn between this diagnosis and the subject accident. As a whole, these questions about the family physician’s records add support to Dr. Safir’s opinion that the applicant’s physical impairments did not substantially impede his ability to perform his pre-accident job.

Psychological Impairments Meet the IRB Standard

24Turning to the applicant’s psychological impairments, I do find the applicant has established that an accident-related, psychological impairment caused “a substantial inability” to perform “the essential tasks” of his pre-accident role.

25The applicant supported his IRB claim based on psychological impairments by highlighting an assessment from Dr. Betty Kershner and Vladimir Kulikov (conducted August 15, 2020). These assessors found the applicant developed a fear of pain and driving anxiety due to the accident. The applicant highlighted this latter symptom in his submissions, claiming that driving anxiety may “significantly impact” his work as a forklift driver. The respondent disputed this claim, noting that these assessors did not comment on the IRB. Also, by challenging the timeline for his return to work, the respondent argued that an adverse inference should be drawn based on incomplete disclosure of employment records. Specifically, the applicant claimed he did not work post-accident between early February 2020 and October 2021, yet the respondent noted that he reported more income during the 2021 tax year than the 2020 tax year.

26Both parties’ psychological assessments concluded that the applicant sustained a psychological impairment as a result of the accident, namely, both found the applicant sustained a form of Adjustment Disorder. However, in her addendum (dated August 31, 2020), Dr. Syed went on to conclude the applicant did not meet the standard for an IRB. As noted by the respondent, Dr. Kershner and Mr. Kulikov did not comment on the IRB in their report.

27Despite this lack of an explicit reference to the IRB, I still find Dr. Kershner and Mr. Kulikov provided compelling commentary on how the applicant’s symptoms impacted aspects of his functioning that overlap with essential tasks of his pre-accident job, notably, driving and concentration. As these assessors wrote:

The subject MVA made him very frustrated and angry. He believes that the driver was reckless. He scared [sic] being in a car, fearing that there will be another MVA… He also experiences difficulty with memory and concentration, which produce significant distress in his daily functioning.

I also find it significant that the applicant reported that he “avoids driving when he can” and “he experienced anxiety and discomfort” as a driver. Again, these symptoms overlap with the essential tasks of a forklift driver.

28I then accept that the severity of these complaints was not trivial in nature, but rather substantially impairing. Specifically, in addition to the diagnosis of an Adjustment Disorder, Dr. Kershner and Mr. Kulikov found the applicant’s symptomology meant he sustained a “Specific Phobia, Situational Type (automobile-related)”. This additional diagnosis shows the importance of the applicant’s driving anxiety to Dr. Kershner’s and Mr. Kulikov’s assessment, which, in turn, speaks to the severity of these complaints. These observations and the resulting diagnosis strongly suggest that his ability to drive over an extended period of time would be negatively impacted in a substantial fashion.

29I recognize that Dr. Syed did not diagnose the applicant with an automobile-related phobia, and that he only reported driving anxiety as a passenger during this assessment. However, I note that the applicant’s other reported symptoms to Dr. Syed appear to be significant. For example, the applicant received “Severely Impaired” ratings on scales for depression and post-traumatic stress. The applicant then self-reported that his psychological symptoms were [emphasis in original]: “significantly affecting his ability to function effectively in his social, occupational or other important areas of functioning.” Therefore, despite the lack of a phobia diagnosis, I find Dr. Syed’s observations support my findings above about the impact of the applicant’s psychological impairments on the essential tasks of his pre-accident employment.

30I further find that Dr. Syed’s conclusion about the IRB in her addendum is not compelling, because I find there is no connection drawn between the psychological diagnosis from her initial report and the IRB standard. Instead, Dr. Syed repeated her findings from her July 2020 report, and then, without further analysis, stated: “From a purely psychological perspective, [the applicant] is not considered to be suffering from a substantial inability to perform the essential tasks of his pre-accident employment.” This lack of analysis makes her conclusion not compelling, and I further conclude that it does not impact my findings about this assessor’s other observations above.

31I also note that, as opposed to the questions raised above regarding a potential impact of the March 2020 accident on his physical condition, there is no similar dispute over the connection between the applicant’s psychological symptoms and the subject accident. As noted by Dr. Syed, the accident in March 2020 likely had an impact on the applicant’s condition, but “it is within a degree of psychological certainty that the subject accident has contributed to his current clinical presentation.” I accept this finding, as it aligns with the applicant’s self-reports about the lack of psychological distress prior to the subject accident.

32Finally, the respondent asked me to draw an adverse inference against the applicant. The basis of the inference is that the applicant’s Notice of Assessment for the 2020 tax year showed a lower total income than the 2021 Notice. I accept that there is a non-trivial difference between the amounts, and I note that the applicant did not respond to this argument by filing a reply. However, I do not find this difference alone is sufficient to challenge my findings above about the applicant’s ability to work. Not only do I find there is a significant amount of evidence supporting the applicant’s psychological impairments and their effects on employment, but the applicant’s reported return to work in October 2021 involved an office job that did not involve driving. Specifically, as reported during the cognitive assessments with John Duong (dated February 3 and 11, 2022), this role involved managing workers, attending meetings, answering correspondence, and walking around a warehouse. Therefore, even if I accepted the respondent’s inference based on the Notices of Assessment alone (that is, the applicant returned to paid employment before October 2021), I am still satisfied, on a balance of probabilities, that he was substantially impaired in his ability to perform the essential tasks of his pre-accident role as a forklift driver.

33In summary, I accept that the applicant’s accident-related, psychological impairments substantially impaired his ability to perform the essential tasks of his pre-accident employment, namely, driving over an extended period of time.

34There was no dispute noted by the parties concerning the IRB quantum claimed by the applicant and noted at the case conference, that is, $400.00 per week.

35The applicant has established entitlement to payment of an IRB in the amount of $400.00 per week for the period following one week post-accident until October 20, 2021, less deductions in accordance with s. 7(3) of the Schedule. The applicant asked for payment of the IRB from the date of loss until October 20, 2021. However, s. 6(2)(a) states that an insurer’s obligation to pay the IRB is not in effect “for the first week of the disability”.

36I find the four disputed treatment plans are not payable.

37Entitlement to medical and rehabilitation benefits is determined by ss. 15 and 16 of the Schedule. An insured person has the onus of demonstrating—on a balance of probabilities—that the proposed treatment goals, services/items, and expenses listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.

38To start, the applicant only submitted copies of the OCF-18s for two of the four disputed plans—the occupational therapy assessment and one of the three plans for chiropractic services, namely, the plan for $1,417.70 (dated April 23, 2021). Without the OCF-18s for the other two chiropractic services plans (one of which appears to be for a knee brace according to the respondent’s submissions), I do not know the treatment goals, nor do I have an itemized list of the proposed expenses. This information is needed to assess a treatment plan against the standard in the Schedule. As such, I find the applicant has not met his onus of establishing the reasonable and necessary nature of the chiropractic services treatment plans, dated March 5 and 13, 2021. However, even if these treatment plans were provided, as my findings detail below, I do not find the applicant has established entitlement to ongoing, chiropractic services.

39The OCF-18 for the remaining chiropractic services plan listed pain reduction, return to activities of daily living, improved sleep, and increases in strength and range of motion as the treatment goals. It sought to accomplish these goals with sessions of physical therapy performed by a chiropractor or a massage therapist.

40In support of these services, the applicant submitted that they would help address ongoing, accident-related pain. He also argued that he had previously reported finding relief from this treatment to Dr. Kershner and Mr. Kulikov. The respondent opposed the plan, arguing the evidence does not “support that post-accident the Applicant was limited in any significant way”.

41I find the applicant has not established the necessary nature of the proposed chiropractic services. In his July 2020 report (less than a year after the subject accident), Dr. Safir had already concluded that the applicant did not exhibit any accident-related, physical impairments that would require ongoing, physical treatment. For the reasons above, I place significant weight on the opinions of Dr. Safir from this period. Therefore, while I recognize that the applicant has reported relief from this treatment, the opinion of Dr. Safir poses a serious challenge to the applicant’s evidence and position on physical impairments. As such, I am not satisfied that the applicant has established the existence of an accident-related, physical impairment that necessitated ongoing, chiropractic services.

42For the occupational therapy assessment, the OCF-18 listed, in part, pain reduction, a return to activities of normal living, the identification of limitations and level of impairment “as it relates to patient’s ability to engage in activities of daily living” as treatment goals. It proposed to accomplish these goals with an “Attendant care benefit determination… completion of Form 1”.

43The applicant argued the assessment could “help identify any modifications that could be made to his workplace to help him return to work if possible, or help him explore other job options more suited to his current abilities.” He also argued that the impact of the accident on “his work ability” has left him with a “complete inability to carry on a normal life”, pursuant to s. 3(7) of the Schedule. Finally, he made a brief reference to how the assessment may help identify needed assistive devices. The respondent disputed the plan, highlighting it was submitted “almost 2 years after the December 2019 accident and shortly after the Applicant returned to work.”

44I find the applicant has not established that the occupational therapy assessment is reasonable and necessary. None of the treatment goals listed in the OCF-18 align with the purported reason in his submissions for why he is seeking payment of this assessment, namely, to help him return to work. Not only did the OCF-18 not identify return to pre-accident work activities as a treatment goal, but the focus of the assessment appears to be on helping the applicant return to activities of daily living in his home life, not work life. For instance, as detailed in the Additional Comments section, the assessment will evaluate areas of function including: personal care, home maintenance, community safety and accessibility, etc. Further, the main item being sought on the OCF-18 is a determination of the attendant care benefit and the completion of a Form 1. Taken together, I am satisfied that this OCF-18 is not for an assessment of workplace accommodations, and, by extension, I find the applicant has not met his onus of satisfying me of the reasonable and necessary nature of this proposed assessment.

45I would then add that the applicant did not make any submissions in support of an assessment that would help determine his attendant care needs through a Form 1, nor is the attendant care benefit in dispute. Instead, again, the applicant mainly focused on employment goals in his submissions.

Interest Owing in Accordance with s. 51 of the Schedule

46Interest applies to any overdue payment of benefits, pursuant to s. 51 of the Schedule.

47The applicant is owed interest in accordance with s. 51 of the Schedule.

ORDER

48I order the following:

i. The applicant is entitled to payment of the IRB in the amount of $400.00 for the period following one week post-accident until October 20, 2021, less deductions in accordance with s. 7(3) of the Schedule.

ii. The applicant is not entitled to payment of the four treatment plans.

iii. Interest in owing in accordance with s. 51 of the Schedule.