Licence Appeal Tribunal File Number: 22-003698/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:
Gina Laforteza
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Bambi Santiago, Paralegal
For the Respondent:
Sonya Katrycz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Gina Laforteza, the applicant, was involved in an automobile accident on December 30, 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, Allstate 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 in the amount of $400.00 per week from May 11, 2020 to February 28, 2021 (less $130.12/week provided from May 11, 2020 to June 29, 2020)?
Is the applicant entitled to $2,000.48 for physiotherapy, chiropractic, and massage therapy, proposed by Pain Rehabilitation Clinic in an OCF-18 submitted April 2, 2020?
Is the applicant entitled to $2,600.64 for physiotherapy, chiropractic, and massage therapy, proposed by Pain Rehabilitation Clinic in an OCF-18 submitted June 19, 2020?
Is the applicant entitled to $598.88 ($2,600.64 less $2,001.76 approved) for physiotherapy, chiropractic, and massage therapy, proposed by Pain Rehabilitation Clinic in an OCF-18 submitted October 2, 2020?
Is the applicant entitled to $2,200.00 for a psychiatric assessment, proposed by Pain Rehabilitation Clinic in an OCF-18 submitted February 18, 2021?
Is the applicant entitled to $200.00 for preparation of an OCF-3 certificate proposed by Pain Rehabilitation Clinic dated May 22, 2020?
Is the applicant entitled to $200.00 for preparation of an OCF-3 certificate proposed by Pain Rehabilitation Clinic dated August 13, 2020?
Is the applicant entitled to $15.61 for prescription medications, submitted on a claim form (OCF-6) submitted May 14, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from May 11, 2020 to September 16, 2020 (less $130.12 per week paid from May 11, 2020 to June 29, 2020), plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed.
ii. The applicant is entitled to the OCF-18s for physiotherapy, chiropractic and massage therapy submitted April 2, 2020 and June 19, 2020, plus interest in accordance with s. 51 of the Schedule.
iii. The applicant is entitled to partial payment of prescription medications in the amount of $12.33, plus interest in accordance with s. 51 of the Schedule.
iv. The applicant is not entitled to the outstanding balance of the OCF-18 submitted October 2, 2020 for physiotherapy, chiropractic, and massage therapy or the OCF-18 for a psychiatric assessment; and
v. The applicant is not entitled to payment for the preparation of OCF-3s dated May 22, 2020 and August 13, 2020.
PROCEDURAL ISSUE
4The applicant’s motion to strike the respondent’s written hearing submissions is denied.
5On October 27, 2023 the applicant filed a notice of motion with respect to the respondent’s late-filed submissions. Pursuant to the Case Conference Report and Order (“CCRO”) dated February 23, 2023 the respondent’s written hearing submissions and evidence were due on October 20, 2023. However, the respondent did not file its written submissions until October 23, 2023 and the applicant submits that she did not receive the respondent’s document brief until the following day, on October 24, 2023.
6As a result, the applicant argues that she was forced to review and prepare her reply submissions in only three days, as opposed to the seven day timeline prescribed in the CCRO. She submits that the respondent failed to file a motion requesting permission to file late and that with the limited time to reply, she has been severely prejudiced in providing a full and fair response. The applicant cites Rule 9.4 of this Tribunal’s Common Rules of Practice & Procedure which holds that if a party fails to comply with any Rules, directions or orders that party may not rely on the document or evidence, without the consent of the Tribunal.
7I find that the respondent’s submissions and evidence will be admitted as part of this hearing record.
8In its submissions, the respondent states that it had mistakenly calculated the submission date for its responding submissions as Saturday October 21, 2023, rather than Friday October 20, 2023. As such, it filed its submissions the following business day, on Monday October 23, 2023. It appears that the document brief was filed the following day on October 24, 2023. While I agree with the applicant that the respondent has late-filed its submissions and evidence resulting in diminished time to the applicant, I find that excluding the respondent’s submissions and evidence would be severely prejudicial to the respondent. It would effectively strike the entirety of the respondent’s case. While I appreciate that the applicant had less time to prepare her reply, there is no indication that she was unable to address the relevant issues within the reduced time period.
9Moreover, I find the decisions cited by the applicant in support of her position to be distinguishable. In Pulcine v. Wawanesa Insurance, 2023 CanLII 52285 (ONLAT) and Ahmed v. Economical Mutual Insurance Company, 2023 CanLII 50618 (ON LAT), only isolated documents were excluded from evidence as they had been produced for the first time as part of written hearing submissions. In Ahmad v. Economical Insurance Company, 2023 CanLII 34465 (ONLAT), the applicant’s submissions were struck in their entirety, however, the delay in that case was substantial. The applicant had failed to file his initial written hearing submissions until after the respondent had filed its hearing submissions and after the written hearing date had passed. I find these decisions to be of limited persuasive value.
10As part of the motion, the applicant also requested costs under Rule 19 which I will address below.
ANALYSIS
Income Replacement Benefit (“IRB”)
11To 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.
Payment of IRBs - May 11, 2020 to September 16, 2020
12I find that the applicant is entitled to payment of IRBs for the period of May 11, 2020 to September 16, 2020.
13At the time of the accident the applicant was employed at Exel Logistics-Canada Ltd. as a material handler. The OCF-2 provided by her employer noted that the essential tasks of her employment were lifting and moving boxes up to 50 pounds, continuous scanning, packing, unpacking, sorting and hanging items. The applicant submits that her accident-related concussion, ongoing headaches, neck and back pain and psychological impairments caused her substantial inability to perform these tasks.
14The respondent paid IRB payments of $130.12 per week beginning on January 7, 2020 until June 29, 2020. This was calculated based on 70% of the applicant’s gross weekly income being $648.12 per week, minus her short-term disability (“STD”) payments of $518.00 per week. On May 10, 2020 the applicant’s STD payments ended. The respondent suspended IRBs by way of letter date June 25, 2020 due to the applicant’s non-compliance with s. 33 of the Schedule. It subsequently denied the applicant’s IRB claim on September 16, 2020, on the basis of its insurer’s examination (“IE”) reports.
15I find that the applicant has established that IRBs are payable from May 11, 2020 to September 16, 2020. The applicant’s STD payments of $518.00 were terminated on May 10, 2020. However, the respondent does not dispute that it continued to pay only $130.12 per week until it suspended the IRB payments on June 25, 2020 due to s. 33 non-compliance. As such, I agree with the applicant that given that the applicant was no longer receiving STD payments, from May 11, 2020 to June 25, 2020 she was entitled to the statutory maximum IRB amount of $400.00 per week.
16The respondent submits that no IRBs are owing after June 29, 2020, as payments were suspended due to the applicant’s non-compliance with a s. 33 request. However, I find that the respondent has led insufficient evidence of the applicant’s non-compliance. The respondent argues that the applicant failed to provide requested updated clinical notes and records (“CNRs”) of her family physician Dr. Jawaid. The respondent submits that the CNRs of Dr. Jawaid were never produced. However, the applicant has submitted evidence that the records of Dr. Jawaid were provided multiple times in response to the s. 33 request. As such, the respondent cannot rely on its June 25, 2020 Explanation of Benefits (“EOB”) to suspend the applicant’s IRBs.
17Therefore, I find that the applicant has established that IRBs are payable in the amount of $400.00 per week from May 11, 2020 to the date of the denial of IRBs on September 16, 2020 (less $130.12 per week paid from May 11, 2020 to June 29, 2020).
Payment of IRBs - September 17, 2020 to February 28, 2021
18I find that the applicant has not established entitlement to IRBs after September 16, 2020.
19The applicant submits that she was substantially unable to complete the tasks of her employment as a result of her diagnosed concussion, ongoing headaches, neck and back pain and psychological impairments. Given that the essential tasks of her employment included lifting and moving boxes up to 50 pounds, constantly packing and unpacking, standing, walking and twisting and that no modified work was available, the applicant argues that her accident-related impairments rendered her unable to work for this period. She confirms that she returned to work, albeit with pain, on March 1, 2021.
20The respondent denied the applicant’s IRB claim on September 16, 2020 on the basis of its IE assessments. Dr. Desai, the respondent’s neurological assessor diagnosed the applicant with persistent headaches, secondary to trauma to the head and neck and recommended a trial of Amitriptyline. From a neurological perspective, Dr. Desai found that the applicant’s headaches did not lead to a substantial inability to complete the essential tasks of employment.
21The respondent’s psychological IE assessor Dr. McKay diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood but also found that she did not meet the substantial inability test from a psychological perspective. Finally, the respondent’s physiatry IE assessor Dr. Cavaliere diagnosed the applicant with headaches, lumbar and cervical strain/sprain with Whiplash Associated Disorders (“WAD”)–II, but similarly found that the applicant did not meet the pre-104 week IRB test.
22The applicant relies on the CNRs of her family physician Dr. Jawaid, arguing that her doctor noted her accident-related impairments and provided work absence notes due to her continued headaches and back pain. I agree with the applicant that from March 2020 to June 2020 Dr. Jawaid noted the applicant’s inability to return to work. However, the applicant does not direct me to any CNR entry where Dr. Jawaid continued to express the opinion that she was not able to work, post-June 1, 2020. The applicant reported to Dr. Jawaid in October 2020 that she was feeling depressed and in September 2021 that she had a “sprain”, but there is no further reference to the applicant’s continued inability to lift heavy objects, focus to complete tasks or continue with employment. As such, I do not find that the CNRs of Dr. Jawaid support ongoing IRBs at the time of the respondent’s denial on September 16, 2020.
23The applicant further points to her self-reports to the respondent’s IE assessors and her STD claim specialist that she could not return to work due to her headaches, inability to lift heavy objects or stand. However, I do not find that such self-reports, without additional medical evidence are sufficient evidence to meet the applicant’s onus to prove a substantial inability to complete the tasks of her employment. Particularly in light of the respondent’s assessments finding there was no such substantial inability. I agree with the respondent that the applicant has not provided any s. 25 reports or CNRs of Dr. Jawaid that reference an ongoing inability to work following the September 2020 denial of IRBs.
24I further am not persuaded by the applicant’s argument that since the respondent’s assessors found that she had not achieved maximum medical recovery, she could not be expected to return to work. I agree with the respondent that the test for entitlement to pre-104 week IRBs, does not require maximum recovery. While this may be a consideration with respect to removal from the Minor Injury Guideline or when considering ongoing treatment, I do not find that the applicant has established that this is a relevant consideration when considering the applicant’s ability to fulfill the essential tasks of her employment.
25As such I find that the applicant has not established entitlement to IRBs beyond September 16, 2020.
26To 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.
OCF-18 submitted April 2, 2020 for physical treatment in the amount of $2,000.48
OCF-18 submitted June 19, 2020 for physical treatment in the amount of $2,600.64
27I find that the applicant has established that the two OCF-18s submitted on April 2, 2020 and June 19, 2020 are reasonable and necessary.
28The applicant submitted two treatment plans from Pain Rehabilitation Clinic for a combination of physiotherapy, chiropractic and massage treatment. Both OCF-18s proposed to address the stated goals of pain reduction, increased range of motion, increase in strength and return to activities of normal living. The listed injuries included WAD-3, strains and sprains and headache syndrome.
29I agree with the applicant that at the time the OCF-18s were submitted, the medical record indicated that she continued to complain of ongoing neck and back pain, and headaches. The respondent’s physiatry IE assessor Dr. Cavaliere diagnosed the applicant with headaches, lumbar and cervical strain/sprain with WAD–II and found that the applicant had not achieved maximum medical recovery. Although Dr. Cavaliere found that further facility-based treatment was not required, a home-based program of stretching, self-massage, exercise and strengthening was recommended.
30The OCF-18s were submitted within six months of the accident, the timeframe that Dr. Cavaliere proposed was favourable for resolution of such soft-tissue injuries. Further, the CNRs of Dr. Jawaid indicate that in March 2020 the applicant continued to have headaches and back pain and was doing physiotherapy, with “good prognosis” in two to three months. In June the applicant still reported back pain. The applicant further reported to Dr Cavaliere in August 2020 that she was 40-50% improved since the accident after the multidisciplinary treatment. As such, the medical record establishes that the applicant continued to report accident-related symptoms during this period, that her family physician had recommended physiotherapy and that she had reported that such treatment was helpful.
31I find that the applicant has established that the additional therapeutic treatment is reasonable and necessary.
Outstanding balance of OCF-18 for physiotherapy, chiropractic and massage treatment submitted October 2, 2020
32The applicant has not established entitlement to the outstanding balance of the OCF-18. A treatment plan in the amount of $2,600.64 for physiotherapy, chiropractic, and massage therapy was submitted on October 2, 2020. The plan was partially approved in the amount of $2,001.76, with $598.88 outstanding. The respondent denied the remaining amount as exceeding the fee guideline amount for a chiropractor. It submits that it had approved the proposed treatment at a chiropractor’s maximum guideline rate of $112.91 per hour, rather than the requested $150.00.
33The applicant argues that she is entitled to the outstanding balance of the OCF-18. She submits that the treatment was not provided by only a chiropractor, but rather, that interdisciplinary care was provided by massage therapists, physical therapists, and acupuncturists. However, I agree with the respondent that the maximum rate set under the FSCO Professional Services Guideline -Superintendent’s Guideline No. 03/14 for massage therapists and physiotherapists is lower than the maximum chiropractor’s rate of $112.81 per hour, which the respondent approved.
34The applicant has not provided any specific submissions or evidence as to why the remaining treatment providers should be paid at the rate of $150.00 per hour. As such, I find that the applicant has not established that the outstanding balance of the OCF-18 is reasonable and necessary.
OCF-18 for a psychiatric assessment dated February 18, 2021
35I find that the applicant has not established that the proposed psychiatric assessment is reasonable and necessary.
36I agree with the applicant that the respondent’s psychological IE assessor Dr. McKay diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood and opined that the applicant would likely benefit from psychological intervention, such as 10 one-hour weekly sessions of cognitive behavioural therapy. However, from her submissions the applicant does not appear to claim that the psychiatric assessment would address the psychological diagnosis or the proposed treatment.
37Rather, the applicant argues that she was removed from the MIG on the basis of a psychological diagnosis, but that psychiatry is a different discipline. She submits that a separate psychiatric assessment is required because she had been prescribed anti-depressant medication by her family physician which should be overseen by a psychiatrist and that a psychiatrist can assess her medical and physical impairments as well. I am not persuaded by the applicant’s argument.
38The CNRs of Dr. Jawaid indicate that the applicant was already seeing a psychiatrist in 2020. In a February 6, 2020 entry the applicant reported that she will be seeing a psychiatrist referred through her physiotherapy clinic. She further reported to Dr. Jawaid on October 5, 2020 that while she was feeling depressed she “has been seeing a psychiatrist”. Although the applicant was reportedly seeing a psychiatrist, no submissions were provided as to why a separate psychiatric assessment was needed. Further, I note the respondent’s argument that to the extent the applicant required a further psychiatric assessment, she would have been obliged to seek one through OHIP.
39Given that the applicant was already being prescribed anti-depressant medication through her doctor and apparently had been seeing a psychiatrist, I do not find that the applicant has met her onus to prove that a psychiatric assessment is reasonable and necessary.
Cost of preparation of OCF-3 dated May 22, 2020 in the amount of $200.00
Cost of preparation of OCF-3 dated August 13, 2020 in the amount of $200.00
40The applicant has not established that the cost of the OCF-3 preparation is reasonable and necessary.
41The respondent argues that the applicant had already provided an OCF-3 from the same treating clinic a few months earlier on January 16, 2020. It submits that it had never requested updated OCF-3s. The applicant contends that the additional OCF-3s were needed to inform the respondent of her ongoing conditions, and that she continued to substantially be unable to perform the essential tasks of her employment and continued to require specialist examinations. She relies on the Tribunal decision 17-002589 v Wawanesa Mutual Insurance., 2018 CanLII 83505 (ON LAT), to argue that the OCF-3s are reasonable as they are a means by which an insurer can identify an applicant’s needs and rehabilitative treatment.
42I agree with the respondent that the applicant’s circumstances had not changed within the six month period, to warrant the additional OCF-3s. The listed impairments in the original January 16, 2020 OCF-3 are identical to those listed in the May 22, 2020 and August 13, 2020 OCF-3s. Although the applicant relies on the Tribunal decision 17-002589 v. Wawanesa, I find that this decision is distinguishable. In that decision, the adjudicator found that the new OCF-3 was reasonable and necessary, as it listed new impairments that the applicant would be seeking treatment for. In the present matter no new impairments were listed. As such, I agree with the respondent that the two new OCF-3s are duplicative and not reasonable and necessary.
OCF-6 claim form for prescription medication in the amount of $15.61
43The applicant is entitled to partial payment of the prescription medication in the amount of $12.33.
44The applicant submitted an OCF-6 form claiming payment for Celecoxib (pain), Cyclobenzaprine (muscle relaxant), Buproprion (depression) and Rabeprazole (stomach protection). I agree with the applicant that the medication relating to depression and pain/muscle relaxant are all reasonable and necessary for her accident related impairments and were prescribed by her family physician. However, the applicant has not established that stomach medication was required as a result of the accident. She has not directed me to any CNR entry where Dr. Jawaid prescribed Rabeprazole as a result of the accident.
Costs
45The applicant requests costs on the basis that the respondent late-filed its submissions and evidence, misleadingly argued that it had met the CCRO deadline, that it failed to notify the applicant or file a motion requesting the late admission and that the respondent failed to attend the case conference.
46The applicant’s request for costs is denied. Rule 19.1 of the LAT Rules states that a party may request costs where they believe that the other party has acted unreasonably, frivolously, vexatiously or in bad faith in a proceeding. I find that the test is not met in this case.
47The threshold for the consideration of costs is high. Although I agree with the applicant that the respondent late-filed its submissions and evidence without notifying the applicant or bringing a motion, I do not find that the applicant has led sufficient evidence this behaviour has met this high threshold. Although the respondent failed to attend the case conference, its counsel attended and the matter was set down for a written hearing and productions were ordered. As such, I find that costs are not warranted.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest with respect to the payment of IRBs for the period of May 11, 2020 to September 16, 2020, the OCF-18 submitted April 2, 2020 in the amount of $2,000.48, the OCF-18 submitted June 19, 2020 in the amount of $2,600.64 and the prescription medication in the amount of $12.33.
ORDER
49I find that:
i. The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from May 11, 2020 to September 16, 2020 (less $130.12 per week paid from May 11, 2020 to June 29, 2020), plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed;
ii. The applicant is entitled to the OCF-18s for physiotherapy, chiropractic and massage therapy submitted April 2, 2020 and June 19, 2020, plus interest in accordance with s. 51 of the Schedule;
iii. The applicant is entitled to payment of prescription medications submitted on an OCF-6 in the amount of $12.33, plus interest in accordance with s. 51 of the Schedule;
iv. The applicant is not entitled to the outstanding balance of the OCF-18 submitted October 2, 2020 for physiotherapy, chiropractic, and massage therapy or the OCF-18 for a psychiatric assessment; and
v. The applicant is not entitled to payment for the preparation of OCF-3s dated May 22, 2020 and August 13, 2020.
Released: May 27, 2024
Ulana Pahuta
Adjudicator