Licence Appeal Tribunal

Citation: Matende v. CAA Insurance Company, 2024 ONLAT 23-002630/AABS

Licence Appeal Tribunal File Number: 23-002630/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:

Joy Matende

Applicant

and

CAA Insurance Company*

Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Frank McNally, Counsel Paolo D’Asti, Counsel

For the Respondent: CAA Insurance Company* Carla Jones, Representative Jeffrey F. Pasternak, Counsel

Court Reporter: Leigh Masse (May 6, 2024) Alyssa Scott (May 7, 8, 9, 2024)

Closed Captioning: Christal Shew

HEARD: by Videoconference: May 6-9, 2024

OVERVIEW

1Joy Matende, the applicant, was involved in an automobile accident on March 1, 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, CAA 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:

i. Is the applicant entitled to an income replacement benefits in the amount of $170.53 per week from March 8, 2019, to date and ongoing?

ii. Is the applicant entitled to $8,537.87 for physiotherapy services proposed by Vijay Sharma in a treatment plan/OCF-18 (“plan”) and submitted to the respondent June 11, 2019?

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

RESULT

3I find that the applicant is entitled to an income replacement benefit (“IRB”) in the amount of $170.53 per week from March 8, 2019 to the date of the first Canada Emergency Response Benefit (“CERB”) application in 2020.

4I find that the applicant is not entitled to $8,537.87 for physiotherapy services.

5I find the applicant is entitled to interest on the delayed IRB payments.

PROCEDURAL ISSUES

Motion to Summons Witnesses

6In the days prior to the hearing the applicant submitted a notice of motion seeking to summons two expert witnesses, Dr. Schmidt and Dr. Giancomo; both of whom were listed in the respondent’s case conference summary as witnesses for the respondent. The motion also requested that that the Tribunal vary the timeline in Rule 15.2 of the Common Rules of Practice and Procedure so this motion can be heard and a summons may be issued without the usual timelines.

7At the beginning of the hearing, it became apparent that neither witness was able to be summoned as Dr. Schimdt had his license by the College of Psychologists of Ontario suspended in April of 2023 and in October of 2023 he resigned his membership in the College; and further, Dr. Giancomo was no longer licensed by the College of Physicians and Surgeons of Ontario to practice Physiatry as he had retired.

8The motion was abandoned by the applicant and no decision was necessary.

The applicant seeks to exclude evidence not supported by testimony

9The applicant made an oral motion at the start of the hearing and submitted that reports from Dr. Schimdt and Dr. Giancomo should be excluded from evidence as neither expert was available for cross-examination.

10The applicant submitted that the reports, which speak to the heart of the matter, are highly prejudicial, the related experts were no longer licensed, and the author cannot be cross-examined and therefore neither report should be considered as part of the evidence.

11The respondent submitted that these were reports written when the authors were duly licensed professionals; that the reports speak directly to the function and capability of the applicant following the accident, were utilized in the denial of benefits and are highly relevant to the issues in dispute. The respondent submitted that the reports should be accepted into evidence and that the adjudicator should apply the appropriate amount of weight to the reports.

12I admitted the evidence and will determine its relevance and the appropriate weight to be applied to it in reviewing that evidence. In considering the weight to be applied, I will take into account the positions of the applicant and respondent.

ANALYSIS

Income Replacement Benefits within 104 weeks after the accident

13For the reasons that follow the applicant is entitled to income replacement benefits of $170.53 from March 8, 2019 to the date of the first CERB application March 15, 2020.

14Section 5(1)2i and ii of the Schedule provide the eligibility criteria for an income replacement benefit in the first 104 weeks following the accident; the applicant must demonstrate a substantial inability to perform the essential tasks of her self-employment.

15The applicant submits that she suffered a concussion (mild traumatic brain injury) and whiplash as a result of the accident and that these impairments cause symptoms which cause a substantial inability to perform the essential tasks of her self-employment.

16The respondent maintains that the applicant is able to perform the essential tasks of her self-employment.

17Applicant relies on the applicant’s post secondary school records, the clinical notes and records (“CNRs”) of family physician Dr. Tracey, reports from OT S. Bosse, the neuropsychological assessment of Dr. Amy Moustgaard, ‘business documentation’ and the testimony of the applicant.

18Respondent relies on the reports of Dr. Giachino, Dr. Schmidt, Dr. Talik Mendis and OT Ron Wiltshire, Canada revenue documentation and the cross-examination of the applicant.

19The assessment of Dr. Moustgaard, neuropsychologist, was conducted over two visits in early December 2019. The report of Dr. Moustgaard is given low weight because of the overreliance on self-reporting and the lack of a medical file review. Of note, Dr. Moustgaard does not draw any linkages between current presentation, test scores and the accident. I appreciate that the applicant was seen over more than one visit and the use of general intelligence and composite scores presents a different perspective on the presentation of the applicant, although there is no insight as to whether the test scores could have been different from what would have been obtained on these tests prior to the accident or had no accident occurred.

20OT Stephanie Bosse conducted her assessment over two visits in mid-June 2019. I assign the report of OT Bosse a reduced weight due to the over-reliance on self reporting. The OT relies on self-reporting by the applicant and care givers and the tests administered were mostly self-report style subjective tests; One exception in the testing battery was the Montreal Cognitive Assessment, not explained in detail, in which the applicant scored 1 point below normal. When outlining objective observations, the OT repeatedly stated that the applicant was able to undertake and sustain many if not all of the movements necessary for function with some notations of endorsing pain due to range of motion or flexion of joints. Many of the objective findings are overwhelmed by the presentation of subjective reports by the applicant which I find unreliable.

21I place no weight on the report by Dr. Schmidt because of his license suspension for misleading the Tribunal; while his report contains an excellent mix of subjective and objective testing, observation and medical file review his suspension and subsequent withdrawal from membership in the College of Psychologists of Ontario casts a dark cloud over his objectivity and the trustworthiness of his opinion.

22I place a great deal of weight on the report by Dr. T Mendis because of his clear, well supported, conclusions and he connects current presentation with the objective findings and the accident. Dr. Mendis submits that the applicant suffered a mild traumatic brain injury (“MTBI”) with post-concussive symptomatology. Dr. Mendis goes on to state that “most MTBI resolve within three months of the injury, although further recovery may occur within the next year.” Dr. Mendis’ opinion is that diagnostic conditions are consistent with the mechanism of the accident, although the severity of the current presentation is greater than would be expected. Dr. Mendis submitted that from a neurological perspective the applicant is able to return to work.

23I place a high weight to the report of physiotherapist Vincent Yip because of the breadth of objective physical tests and clarity of reasoning. Mr. Yip submitted that there was no link between the applicants reports and the physical exam, there was no link between the physical and functional deficits and the impairments identified in the medical documentation and that there was no link between the performance of activities over time, ultimately concluding that the limitations described by the applicant are not consistent with the limitations the assessor would anticipate based on the injuries sustained.

24The report of Dr. Giachino is given a slightly reduced weight as the applicant sought an opportunity to cross-examine the assessor but he is unavailable due to retirement. His report is comprehensive but by his own admission there are no objective findings that support his diagnoses. I do find Dr. Giachino’s review of and comments on the extensive pre-accident medical history very helpful, in particular his location of clinical notes outlining neck and shoulder complaints a year prior to the subject accident. In addition, his insight that the medical documentation of the applicant is “replete with multiple system involvement with no objective findings, with a psychiatric diagnosis that indicated significant anxiety…” is helpful in understanding the applicant’s current presentation.

25I assign the report of OT Ron Wiltshire a reduced weight due to the over-reliance on self reporting and a lack of objective testing, although his observations that are counter to self reports are noted and quite helpful. OT Wiltshire conducted his assessment in late August 2019. OT Wiltshire’s principal reason for conducting the assessment was the applicant’s functional capacity related to activities of daily living. There were no recommendations for supports and notations that the OT observed the applicant performing functional abilities to a greater degree when not conducting formal testing; in particular the OT observed the applicant run up the stairs without the assistance of the hand-rail while during formal testing the applicant was observed to hold the rail and use an alternating gait.

26The applicant testified and I found her to be pleasant but following her testimony I was no more clear on her theory of the accidents affects on her, the true nature of her work nor why the physiotherapy was helpful and required.

27The applicant’s mother testified and I assign a very low weight as she denied facts that had been established elsewhere in the record without plausible explanation. While she was clear on pre and post accident functionality I did not find her credible in these answers. In particular, it became apparent that Mrs. Matende was in charge of tax filing for the applicant and had never enquired with her daughter about the business, its revenue or expenses.

28While the applicant is adamant that she did not hit her head and did not lose consciousness during the accident, the injuries outlined in CNRs of Dr. Tracey and in the Ottawa Hospital records, in the days immediately following the accident point to whiplash and a likely concussion which is corroborated by assessment reports in the years following the accident, many of which diagnose a likely mild-traumatic brain injury.

29I also accept that the applicant reacts excessively to discomfort, as there are a great deal of CNRs with no resolution and no diagnosis as well as many independent examination reports replete with mention of guarding behaviour and an inability to complete specific testing due to pain which in many cases can’t be corroborated with physical examination findings.

30The Carleton University unofficial transcript is quite enlightening. The applicant reported to many assessors that she had to give up her university year due to missing mid-terms and hasn’t been able to return due to her injuries. The transcript outlines a spotty record of registration and modest accomplishment; the applicant completed ten credits over 7 years with an unremarkable grade point average; many years she was attending she was doing so part-time; notably she had taken 8 months off of school prior to the winter 2019 semester, during which the accident occurred. As well, as noted in CNRs, missing the mid-term exams following the subject accident is not the first time the applicant missed exams due to injury and, as located in CNRs, on at least one other occasion the applicant received a sick note to excuse her from school obligations.

31The “start-up business” the applicant was engaged in and reported to assessors as her employment created assumptions by assessors about the type and volume of work the applicant was achieving prior to the subject accident. Based on testimony from the applicant and the ‘business records’ it is not clear what the business is; reports vary at times from drop shipping headphones to creating biometric-reading wearable technology to creating a team of social media-influencers with connections to professional sports. Taken at face value, starting a business is a huge undertaking and while not minimizing the effort and attention the applicant has paid to this endeavour it is essentially a very small drop shipping business that aspires to more. The records submitted are in no way shape or form business records and the report by ADS Forensics demonstrate good margins but very low volumes of revenue.

32There is a wide degree of variance in the findings of the various accredited professionals that have assessed the applicant. The applicant’s outline of her symptoms has remained consistent throughout the course of her recovery and this dispute. I find that the applicant was injured in the subject accident and that the injuries from the accident caused a substantial inability to perform the essential tasks of the applicant’s self-employment.

33I find that the substantial inability to perform the essential tasks of the applicant’s self-employment ceased when the applicant applied for the Canadian Emergency Response Benefit, wherein applying the applicant attested that she was ready willing and able to work.

Income Replacement Benefits post 104 weeks after the accident

34For the reasons that follow, I find that the applicant is not entitled to income replacement benefits post 104 weeks after the accident.

35Section6(2)(b) of the Schedule states the insurer is not required to pay an income replacement benefit…after the first 104 weeks of disability, unless as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

36Applicant relies on the applicant’s post secondary school records, the clinical notes and records (“CNRs”) of family physician Dr. Tracey, Westend Family Care Clinic and FunctionAbility; the reports from OT S. Bosse and Dr. Amy Moustgaard and the physiatry assessment of Dr. Cheng and the testimony of the applicant.

37Respondent relies on the reports of Dr. Giachino, OT Wiltshire, Dr. Schmidt, Dr. Talik Mendis, Canada revenue documentation and the cross-examination of the applicant.

38The report by Dr. Cheng, physiatrist, based on an assessment conducted in late September 2021, is assigned a medium weight. Dr. Cheng provides an excellent overview of his enquiry, approach and the utilization of past CNRs during his interview that drew new perspective and information from the applicant. Dr. Cheng was not able to fully examine and assess the neck and spine due to reports of pain, although the doctor noted that he was able to observe a greater range of motion in these areas during informal observation and with the use of distraction. Dr. Cheng also submitted during testimony that he was not sure the applicant had a problem with her shoulders as there were no clear trigger points or spasms. Finally, as Dr. Cheng is not a vocational assessor, his submission that the applicant’s impairments result in a considerable loss of competitive advantage and a future of reduced hours and lesser physical and cognitive demands than what she was performing at the time of the subject accident are outside his scope of professional opinion. A great deal of assumption, based on self-reports, is being made about the ambition and dedication of the applicant with regard to her university attendance and the start-up business.

39The applicant, by her own admission, has carried on, to some varying degree, over the course of her recovery with the essential tasks associated with her chosen self-employment.

40The applicant applied for the Canadian Emergency Response Benefit, wherein applying the applicant attested that she was ready willing and able to work.

41I find that the applicant has not established that she is or has suffered a complete inability to engage in any employment or self-employment.

Physiotherapy services?

42For the reasons that follow, I find that the applicant is not entitled to $8,537.87 for physiotherapy services.

43To 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 the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

44The applicant did not make specific submissions in support of the physiotherapy treatment plan relying on s.25 reports submitted, the OCF-18 submitted by Vijay Sharma, Physiotherapist and on the applicant’s testimony.

45Respondent has denied the treatment plan as not reasonable and necessary and relies on the s. 44 report of Dr. Giachino and cross examination of the applicant.

46The applicant is an excellent historian of somatic concerns but under specific questioning her memory was very vague on details that would have both been supportive or detrimental to her case. The applicant stated that it is difficult to say how physiotherapy was helpful. As reported by the applicant, her family’s perspective is that it looked like she was in more pain following physiotherapy but that she felt less inflamed and for periods after treatment had improved range of motion. On specific questioning about the range of motion the applicant reported that after physiotherapy she could handle screens better, lift minor household items, walk further and feel less pain.

47Dr. Giachino’s report, as outlined previously, has been assigned a reduced weight. Dr. Giachino submits that “there is a past history of symptoms that are similar to the symptoms the applicant complains of at present, and a very clear past history of overreaction to multiple inexplicable system complaints – all objectively found to be normal… there are pre-accident conditions that contribute to the current clinical presentation and I believe most of these lie in the domain of psychiatry”.

48Physiotherapy does not appear to have improved the applicant’s symptoms and the applicant is unable to clearly outline how treatment would support the applicant in reaching maximum medical recovery.

49Th applicant has failed to demonstrate, on a balance of probabilities that the benefit is reasonable and necessary; the applicant has not identified specific goals of the treatment; and based on the lack of progress achieved, the cost of achieving the vague goals is not reasonable.

Interest

50As I find the applicant is entitled to overdue payments for IRB, it follows that interest is payable on the overdue payments.

51In accordance with the provision of s. 52(5) and (6) of the Schedule, I find that the applicant is entitled to interest at the bank rate from 15 days after the applicant became eligible for IRB’s.

ORDER

52I find that the applicant is entitled to an IRB in the amount of $170.53 per week from March 8, 2019 to the date of the first Canada Emergency Response Benefit (“CERB”) application in 2020.

53I find that the applicant is not entitled to $8,537.87 for physiotherapy services.

54I find the applicant is entitled to interest on the delayed IRB payments.