Licence Appeal Tribunal File Number: 22-001170/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:
Nasser Daher
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Paul Mooney, Counsel
For the Respondent:
Alison Ritchie, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Nasser Daher, the applicant, was involved in an automobile accident on January 1, 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, Pembridge Insurance Company, 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 (IRB) in the amount of $400.00 per week from January 30, 2022, to date and ongoing?
Is the applicant entitled to $484.28 for other assistive devices, submitted on an invoice (OCF-21) dated December 03, 2021, and denied on December 08, 2021?
Is the applicant entitled to $4,459.84 for speech language services, proposed by FunctionAbility Rehabilitation Services (FRS) in a treatment plan/OCF-18 (“plan”) dated on February 01, 2022, and denied on March 02, 2022?
Is the applicant entitled to $1,214.41 for occupational therapy services, proposed by FRS in a plan dated on January 05, 2022, and denied on April 25, 2022?
Is the applicant entitled to $3,661.40 for occupational therapy services, proposed by FRS in a plan dated on July 08, 2022, and denied on August 18, 2022?
Is the applicant entitled to $2,567.30 for kinesiological services, proposed by Felming Fitness in a plan dated on August 10, 2022, and denied on August 23, 2022?
Is the applicant entitled to $2,109.47 for yoga, proposed by FRS in a plan dated on October 04, 2022, and denied on October 20, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a post-104-week IRB.
4The applicant is not entitled to the treatment plans, nor interest.
ANALYSIS
Income Replacement Benefit (IRB)
5The applicant is not entitled to a post 104-week IRB.
6To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
7There appears to be no dispute that the applicant received an IRB until at least January 30, 2022. As such, the applicant received an IRB during the full 104 week period following the accident.
8The current dispute between the parties involves a post-104-week IRB. However, neither party makes submissions on the applicant’s entitlement to a post-104-week IRB. Instead, they address the legal test for the pre-104-week IRB which the applicant has already received.
9The applicant submits that the limitations caused by the accident have resulted in him having a substantial inability to perform the essential tasks of his pre-accident employment.
10The respondent cites the findings of two insurer examination (IE) multidisciplinary assessments and submits the applicant does not suffer a substantial inability to perform the essential tasks of “his employment.”
11The applicant references the disability certificate completed by Dr. Smith, his family doctor, dated December 14, 2020. According to the applicant, this form indicates that he suffers a substantial inability to perform the essential tasks of his employment. The applicant submits that Dr. Smith is in the best position to understand the applicant’s medical condition, level of function, and job requirements at the time of the accident and thereafter.
12It is unclear if the disability certificate is in evidence. The applicant’s submissions are attached to 1600 pages of evidence. The applicant provided no index for this brief and the bookmark tabs do not list this document. The applicant previously filed an index which indicated that the disability certificate is at Tab 11. However, the evidence brief in evidence ends at Tab 9. I was unable to find this disability certificate.
13The applicant relies on a Psychological Assessment Report by Ricci and Associates dated March 9, 2021. According to the applicant, this report states that he has been unable to return to work since the accident due to symptoms of concussion, anxiety and depression. It is also unclear if this document is in evidence. The applicant states that this document is at Tab 6. However, a different document is found there. I was unable to find this document.
14The applicant references the neurological assessment of Dr. Vincenzo Basile, neurologist, dated May 12, 2023. The report notes that at the time of the accident the applicant was working as a government IT manager for about two years. The report also states that the applicant has impairments that make it difficult for him to perform tasks involving heavy lifting, bending, prolonged sitting, or standing. He also has cognitive impairments which affect his concentration, memory, attention, and balance. According to the report, the applicant was not able to continue with his job after the accident, has not worked since his accident, and is not currently working. In his reply, the applicant submits that the physical and cognitive impairments identified by Dr. Basile substantially affected his ability to perform the essential tasks of his pre-accident employment.
15To prove his case for a post-104 week IRB, the applicant must establish that his impairments cause him to suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. This was not done. The applicant referred to evidence of his impairments, but did not point to evidence of his education, training, or experience. He made no submissions on his inability to engage in any reasonably suited employment. As such, the applicant has not explained how his impairments apply to the essential elements of a post-104 week IRB.
16The applicant provided an insufficient basis to determine that he is entitled to a post-104-week IRB. Consequently, I find that he is not entitled to this benefit.
17The applicant is not entitled to the treatment plans in dispute.
18To 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.
Issue 2: Assistive Devices
19The applicant submits that healthcare practitioners documented consistent pain complaints and concussion symptoms. These symptoms are corroborated and documented by Dr. Smith, his family doctor, and Dr. Lawrence, chiropractor. The treatment plans in dispute were created and submitted based on these recommendations.
20The respondent submits that the IE of Mohan Iyengar, occupational therapist, dated October 31, 2022 found that the applicant is independent with all his self-care and already has the assistive devices he needs to complete home maintenance tasks of cleaning and upkeep of the house with proper pacing and planning.
21The invoice for the assistive devices in issue 2 does not appear to be in evidence and the applicant has not pointed to any evidence which states what the assistive devices are.
22Additionally, the applicant makes no submissions on why these specific assistive devices are needed. He also does not provide submissions on how the overall cost is reasonable.
23It is unknown what the assistive devices are. The applicant has not explained the necessity of the devices, nor has he touched on the element of cost. Consequently, I find that the applicant has not established his entitlement to these assistive devices.
Issue 3: Speech Language Services
24As noted above in paragraph 19, the applicant makes submissions that apply to all the treatment plans in dispute. In brief, his symptoms are corroborated and documented by Dr. Smith and Dr. Lawrence and that all the treatment plans were created and submitted based on these recommendations.
25The applicant also submits that the Speech Language Pathology Assessment Report by Rebecca McCormack, speech language pathologist, dated February 9, 2022 shows that it may be a challenge for the applicant “to recall and understand instructions, communicated with colleagues, understanding instructions/reports/procedures/policies, remembering verbal instructions, increased mental effort to stay focused.” According to the applicant, the same report recommends “Speech Language Pathology” once per week for the first three months.
26The respondent relies on the IE titled Speech Language Pathology Assessment, dated April 25, 2022, by Ms. Jennifer Peacock, speech language pathologist. She found that the applicant’s physical and psychological symptoms impeded his functioning during testing and the results do not represent his true cognitive-communication functioning abilities. In her view, the applicant would not benefit significantly from speech-language pathology intervention.
27Both reports document similar cognitive and communication deficits. The different recommendations in the two reports are based on what caused these deficits. The IE of Ms. Peacock took into account the applicant’s pain complaint’s and psychological symptoms when interpreting his test results. She concluded that speech language therapy would not be helpful to the applicant as it would not address the root cause of his communication difficulties. The report of Ms. McCormack states that the applicant’s pain complaints and psychological symptoms likely contribute to his cognitive-communication challenges, but is silent on how these factors impacted the applicant’s test results. As such, Ms. McCormack’s report does not address a significant factor in determining whether the proposed treatment will actually benefit the applicant.
28I give more weight to the IE because the assessment in the IE is more complete and deals with the full scope of the evidence. For this reason, I find that this treatment plan is not reasonable and necessary.
Issue 4: Occupational Therapy
29This treatment plan is for aromatherapy.
30The applicant makes no submissions that specifically address the disputed plan for aromatherapy. As such, I find that he is not entitled to this treatment plan as he has not provided a basis to find that this treatment is reasonable and necessary.
Issue 5: Occupational Therapy
31The applicant submits that the Function-Ability report dated July 29, 2022 documents that he continues to experience difficulties with his back, hip, lower back, cognitive functioning, higher stress, low motivation, low mood, headaches, light sensitivity, ongoing sleep difficulties, limited mobility, balance issues, symptoms of depression, stress and frustration, anxiety, and cognitive issues in the areas of communication, memory, executive functioning, attention. Moreover, he is still having difficulties with housework.
32The respondent relies on the IE of Mr. Iyengar. This report documents that the applicant has a full range of motion in his neck, shoulders, elbows, arms, hands, wrists, hips and legs with minimal limitations in trunk flexion. The applicant had the functional abilities to be independent in all his self care. No cognitive deficits were identified during the assessment. Moreover, the IE notes that the applicant had self limited his functional activities. The respondent submits that, from an occupational therapy perspective, the applicant has already been provided appropriate rehabilitative services and this plan will not help the applicant in being self-reliant.
33The Occupational Therapy Report by Jessica Turgeon, dated July 29, 2022 documents the applicant’s limitations. The IE of Mr. Iyengar also documents some of the same limitations. For example, both reports indicate that the applicant has the cognitive challenge of word finding difficulties and the psychological issue of being pain focused. The principle difference between the two reports is that Mr. Iyengar views the applicant as being too dependant on his treating clinicians and not practicing the learned strategies from his treatment sessions. This is why he does not recommend this treatment plan. He opines that the applicant needs to be more self directed to improve.
34The applicant continues to have accident related limitations that impact his ability to function. The parties agree that he sustained, at the very least, a mild concussion and continues to have complaints of fatigue and engages in counterproductive pain-focused behaviour. In my view, there is enough here to show that he may benefit from continued occupational therapy. Even so, the applicant must still establish how the goals of the treatment plan will be met to a reasonable degree. In particular, submissions on how the applicant’s self-limiting behaviour can be dealt with to allow for further improvement. The applicant makes no submissions in this area. He also makes no submissions on the overall cost of the plan being reasonable.
35The applicant is silent on two elements of the three part test for determining whether this treatment plan is reasonable and necessary. As such, there is an insufficient basis to find that he is entitled to this treatment plan.
Issue 6: Kinesiological Services
36The applicant made no submissions that specifically address the disputed plan for kinesiological services. As such, I find that he is not entitled to this treatment plan as he provided no basis to find that this treatment is reasonable and necessary.
Issue 7: Yoga
37The applicant submits that a Function-Ability report, he does not say which specific report, recommends yoga therapy.
38The respondent submits that this treatment plan was partially approved in a multidisciplinary assessment dated March 9, 2023.
39The following items were not approved:
a. Line 3 “provider travel time” 8 x $464.80
b. Line 4 “documentation, support activity” $140.00
c. Line 5 “planning service” $245.00
40The applicant made no submissions on the denied portions of the treatment plan. Consequently, I find that the applicant is not entitled to the denied portions of this plan because he provided no basis to find that these parts of the plan are reasonable and necessary.
Interest
41The applicant is not entitled to interest pursuant to s. 51 as no benefits are owing.
ORDER
42The applicant is not entitled to a post-104-week IRB, the treatment plans, nor interest.
Released: January 15, 2024
__________________________
Harry Adamidis
Adjudicator