Citation: Eisazadeh v. Aviva Insurance Company of Canada, 2024 ONLAT 21-010002/AABS

Licence Appeal Tribunal File Number: 21-010002/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:

Nazli Eisazadeh

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Kevin So, Counsel

HEARD:

By written submissions

OVERVIEW

1Nazli Eisazadeh, the applicant, was involved in an automobile accident on July 12, 2019, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was involved in a second accident, on December 14, 2019, which is not the subject of this proceeding.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 17, 2019 to December 5, 2020?

ii. Is the applicant entitled to a medical benefit in an amount of $3,764.21 for physiotherapy sessions, proposed by Newmarket Health and Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted August 27, 2020 and denied on September 11, 2020?

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

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

4At the case conference, the applicant sought an income replacement benefit from January 14, 2020 to date and ongoing. In submissions, she changed the time period of the Income Replacement Benefit (IRB) to being from July 17, 2019 to December 5, 2020. The above description of issue 1 is amended accordingly.

RESULT

5The applicant is not entitled to an IRB, physiotherapy, interest, nor an award. The application is dismissed.

ANALYSIS

Pre-104 week income replacement benefit (IRB)

6The applicant is not entitled to an IRB.

7To 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.

8The applicant asserts that her accident related injuries prevented her from working full-time. She submits that she is entitled to an IRB from July 17, 2019 to December 5, 2020 because her accident related injuries caused a decrease in her post-accident income.

9According to the respondent, the applicant’s medical evidence does not address the IRB test, nor the elements that need to be proven. Consequently, the respondent asserts that she has not established her entitlement to an IRB.

10The applicant cites medical evidence to show that her accident-related injuries effected her ability to work. The clinical note of Dr. Mottaghian, psychiatrist, dated November 4, 2019 states “She reports ongoing struggle with chronic pain since the accident/ She has been very stressed about the pain for that it does interfere with her work.” The applicant also reported concerns with her weight gain since the accident, losing motivation to stay on her diet, and being less active. She reports being fearful of driving and looking over her shoulders checking the driving habits of others. She avoids driving and highways at times. She reports insomnia and waking up from sleep from “frightening dreams." The applicant also discussed “saying no” to her boss who is demanding that the applicant increase her hours at work.

11The letter dated December 18, 2019 by Dr. Warren Goldstein, neurologist, states that the applicant had an accident in July, 2019 that caused a whiplash injury and may have lead to a concussion of mild degree as she developed somatic and neuropsychiatric sequelae in keeping with post concussion syndrome. The applicant has chronic post-traumatic headaches with a “migrainous flavour.” The applicant reported that she had to reduce her hours in her job as an administrator in real estate because of back pain with sitting and headaches.

12The disability certificate by Dr. Elana Silverman, chiropractor, dated January 14, 2020, describes the applicant’s injuries as cervicalgia, injury of muscle and tendon at neck level, sprain and strain at shoulder joint, pain in the thoracic spine, sprain and strain of thoracic spine, sprain and strain at lumbar spine, headache, myalgia, nonorganic sleep disorders, dizziness and giddiness. Dr. Silverman also checked the box in part 6 of the form indicating that the applicant is substantially unable to perform the essential tasks of her employment. This is followed by a comment “the patient was working on reduced hours and modified duties post-MVA.”

13The clinical note of Dr. Fallahian, her family doctor, dated April 21, 2020 states that the applicant reports more pain in her joints and muscles and that she has not yet returned to work.

14This evidence documents that the applicant’s physical and psychological injuries caused her to work fewer hours. The clinical note of Dr. Fallahian states she had not returned to work, but this is confusing because there are many references to the applicant returning to work part-time after the accident. Consequently, little weight is given to this clinical note because it is inconsistent with the majority of the evidence and there is no context to explain why she had not “returned to work” by April, 2020.

15The disability certificate by Dr. Silverman is the only evidence which states that the accident caused the applicant to have a substantial inability to perform the essential tasks of her employment. I note that Dr. Silverman qualifies this statement by saying that the applicant works reduced hours and modified duties.

16The insurer’s examination (IE) of Dr. Martin Svihra, psychiatrist, is part of a Multidisciplinary Assessment Report dated March 27, 2020. Dr. Svihra found the applicant sustained an adjustment disorder with mixed anxiety and depressed mood as a result of the accident. In this report, the applicant reports that she is able to perform the essential tasks of her work but works fewer hours because of pain. She reported working 25 hours per week after the second accident which took place on December 14, 2019. Dr. Svihra concludes that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

17Dr. Paul Tepperman, occupational health physician, also conducted an IE that is included in the Multidisciplinary Assessment Report. He determined that the applicant suffered myofascial strain of her cervical and mid thoracic paraspinal musculature, post-traumatic headaches, and right shoulder strain as a result of the accident. At the time of the assessment, however, there was no substantial evidence of musculoskeletal or neurological impairment. At this examination, the applicant stated that she was working 15 hours per week instead of the usual 37 hours per week. Dr. Tepperman notes that the applicant’s work is administrative in a real estate office and that she does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

18The respondent notes that the information on the applicant’s application for Employment Insurance (EI) is inconsistent with her submissions. Specifically, that the applicant argues that the sole reason she earned less money after the accident was because she had to work less hours due to her accident related injuries and that she is entitled to an IRB because of the decrease in earnings. However, this position conflicts with the EI application which indicates that she stopped working on March 1, 2020 due to a shortage of work. The applicant provided no explanation for this inconsistency.

19In any event, I find that the applicant has not established her entitlement to an IRB. The applicant cites medical evidence that documents her accident related injuries. However, having accident related injuries does not establish entitlement to an IRB. The applicant must show that she suffers a substantial inability to perform the essential tasks of her employment. The evidence shows that she continued to work part-time after the accident. This was considered in the IEs of Dr. Tepperman and Dr. Svihra, who also conducted a detailed assessment of the applicant’s physical and psychological injuries. They considered the IRB test and determined that she does not satisfy the criteria to receive this benefit. I find the IEs more persuasive than the disability certificate of Dr. Silverman which opines that the applicant is entitled to an IRB, but provides no reasoning for this opinion. Consequently, I find that the applicant is not entitled to an IRB.

20The applicant is not entitled to physiotherapy.

21To 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.

22The applicant submits that the treatment plan for physiotherapy addresses her accident-related impairments to facilitate pain reduction, increasing her range of motion and strength, educating her on proper task modification strategies, and to help return her to the activities of normal life. The applicant submits that the treatment goals are reasonable and treatment plan will meet these goals, and as such, she is entitled to this treatment plan.

23The respondent relies on the IE of Dr. Tepperman, dated September 14, 2020, which found that there was no substantial evidence of musculoskeletal and no neurological impairment. The respondent submits that the applicant is not entitled to this treatment plan.

24I note that there are 13 items listed in the OCF-18. Many of the items are assistive devices. An Omega 3 supplement is also listed as one of the items. The applicant makes no submissions on why any specific item in this list is reasonable and necessary.

25The applicant relies on the clinical notes of Dr. Tan, her previous family doctor, from the time of the accident in which the applicant is diagnosed with lower back pain, right shoulder injury, tension headaches, and weight gain.

26Dr. Tepperman physically examined the applicant on November 28, 2019. He determined that the applicant suffered soft tissue injuries and that there was no substantial evidence of musculoskeletal or neurological impairment. In the follow-up paper review, dated September 14, 2020, he opines that the applicant has reached maximum medical improvement since her soft tissue injuries have had sufficient time to heal. This indicates that the accident related injuries documented by Dr. Tan were no longer evident by November, 2019, which is nine months before this treatment plan was submitted to the respondent.

27The applicant also relies on the clinical notes of Dr. Fallahian which diagnosed the applicant with chronic pain injuries, including chronic back pain, chronic neck pain, chronic headaches, sleeping issues, and psychological injuries.

28The applicant’s first appointment with Dr. Fallahian was on January 28, 2020. This was after her second accident which took place on December 14, 2019. At this first appointment she makes no pain complains and the doctor notes that she is “generally well.” Her first pain complaint is documented on her March 1, 2020 visit. She complained about left hand pain which is an injury associated with the second accident.

29Her first complaint of muscle pain is on April 21, 2020. This was a telephone consultation as the pandemic lockdown was in place at that time. Dr. Fallahian was not in a position to physically examine the applicant.

30The applicant complains of “chronic pain” after a car accident to Dr. Fallahian during a June 22, 2022 telephone consultation, but the specific accident is not referenced.

31The only in-person appointment appears to have taken place after the pandemic was on January 31, 2023. The following clinical notes are from that in-person appointment:

HAS BACK PAIN AND WRIST PAIN AFTER

HAD FRACTURE

HAD PHYSIO FOR A YEAR

32The fracture is a reference to an injury from the second accident. As such, the clinical notes of Dr. Fallahian indicate that the applicant’s back pain began after the second accident.

33In my view, the clinical notes of Dr. Fallahian do not support the treatment plan. The applicant made no pain complaints until four months after the second accident. The applicant continued to make pain complaints in January, 2023, but these are linked to the second accident. In light of these circumstances, I prefer the IE of Dr. Tepperman because he physically examined the applicant before the second accident and found no evidence of musculoskeletal injuries.

34The applicant also cites the reports of Dr. Goldstein in support of this treatment plan. Most of these reports deal with a possible concussion and headaches. The applicant has not made any submissions that link physiotherapy to these neurological conditions. Dr. Goldstein attributes a whiplash injury to the subject accident. However, it should be noted this assessment was conducted four days after the second accident. Again, I find the IE of Dr. Tepperman more persuasive because he physically examined the applicant before the second accident and there were no musculoskeletal injuries.

35For all these reasons, I find that the medical evidence cited by the applicant less persuasive than the IE of Dr. Tepperman. As such, I further find that applicant has not established, on a balance of probabilities, that she is entitled to physiotherapy.

Interest

36As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

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.

38The applicant made no submissions on the issue of the award. As such, there is no basis for me to find that the respondent is liable to pay an award.

ORDER

39The applicant is not entitled to an IRB, physiotherapy, interest, nor an award.