Licence Appeal Tribunal File Number: 22-001624/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:
Rameetha Haran
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Golan Mergui, Counsel
For the Respondent:
Danielle Ralph, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rameetha Haran, the applicant, was involved in an automobile accident on October 21, 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, Certas Home and Auto 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 $113.19 per week from January 20, 2022 to date and ongoing?
Is the applicant entitled to $480.00 ($2,730.00 less $2,250.00 approved) for social work counselling, proposed by 101 Assessments in a treatment plan (“OCF-18”) submitted June 30, 2021 denied July 30, 2021?
Is the applicant entitled to $2,460 for a neurological assessment, proposed by 101 Assessments in an OCF-18 submitted June 30, 2021 denied July 30, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant has not established entitlement to any of the disputed benefits, interest or an award.
PROCEDURAL ISSUE
4The respondent brought a motion seeking an order to exclude the following from the applicant’s submissions and document brief:
i. A clinical note from Dr. Chawla dated June 27, 2023;
ii. A catastrophic (“CAT”) impairment report dated June 20, 2023;
iii. Paragraphs 14, 15 and 28 of the applicant’s submissions which rely on the conclusions in the CAT reports; and
iv. Paragraph 13 and 22 of the applicant’s submissions, as they amount to untested affidavit evidence.
5The respondent submits that the above records and submissions should be excluded because the applicant did not comply with the deadline for the exchange of evidence pursuant to paragraph 5 of the Tribunal’s case conference report and order (“Order”). The Order supports that the parties agreed that the last date to exchange evidence was February 16, 2023, and the last date to exchange any responsive evidence was March 18, 2023. The respondent maintains that it received the aforementioned documentation for the first time when it received the applicant’s written submissions for this written hearing on July 17, 2023. The respondent argues that it would be procedurally unfair to allow the applicant to rely on this evidence and her submissions in relation to same because it amounts to trial by ambush, and it has a right to know the case it must meet. In this case, the respondent will be prejudiced if the applicant is allowed to rely on this evidence because it is left with no time to schedule an assessment, obtain responding reports or prepare submissions in response. Further, the applicant should have brought a motion seeking the Tribunal’s permission to rely on this evidence but did not.
6The respondent relied on various decisions of this Tribunal including J.A. v. Aviva General Insurance Company, 2019 CanLII 110100 (ONLAT); Hibbert v. Cooperators General Insurance Company, 2022 CanLII 55014 (ON LAT) and Ibrahim v. Aviva Insurance Company 2021 CanLII 127461 (ON LAT) in which the Tribunal excluded evidence which was served in non-compliance with the Tribunal’s orders. In the alternative, the respondent requested to file a sur-reply to address the June 27, 2023, note and the CAT reports, as well as paragraphs 13, 14, 15, 22 and 28 of the applicant’s submissions should they be permitted.
7The applicant argues that none of her evidence or submissions should be excluded because it would be prejudicial to her case. Further, she submitted the records to the respondent as soon they became available to her. She relied on the Tribunal’s decision in Zidan v Aviva Insurance Company, 2023 CanLII 40103 (ON LAT) and 16-00732 v. Wawanesa Mutual Insurance Company, 2017 CanLII 19205 (ON LAT) (“16-00732”), in which the Tribunal permitted late served evidence and/or allowed the insurer to file a sur-reply addressing same.
8The respondent’s motion is granted in part and the CAT report dated June 20, 2023, and the applicant’s submissions in relation to same are struck for the following reasons. As a starting point, Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure provide that the minimum deadline for the exchange of all documentary evidence is 10 days prior to the hearing. In this case, the parties were ordered to exchange all evidence months before the hearing date. The applicant submits that she had no control over when these documents were received. However, she provided no proof of when the CAT report was received by her, and it was dated almost one month prior to the deadline for her written submissions. In addition, I find the applicant would have been aware that the CAT assessment was being completed and that she intended to rely upon it. In my view, the applicant could have served the respondent with the CAT report within the month prior to the deadline to file written submissions, could have taken steps to consult with the respondent or file a motion with the Tribunal seeking permission to rely on it.
9Finally, I do not find the caselaw relied upon by the applicant helpful to her position. I agree with the respondent that Zidan is distinguishable from the present case as the evidence admitted included a prescription summary and hospital records. In Zidan, the Tribunal acknowledged the difference between those records and expert reports in which the Tribunal may not have been as lenient. Moreover, the adjudicator considered the fact that it was an oral hearing, and the evidence could be tested through cross-examination. That same right does not exist in a written hearing. In 16-001732, the Tribunal allowed a late served expert report and addressed the prejudice by allowing the opportunity to the other party to file a sur-reply. In this case, I find this is not proportionate to the issues in dispute as a CAT determination is not an issue before me. Therefore, this report is not directly relevant to the issues in dispute. Further, I find that providing the respondent with a right of a sur-reply would not cure any prejudice because it will not have adequate time to have responding reports completed in response. For these reasons, I exclude the CAT report dated June 20, 2023, and submissions in relation to same.
10I decline to exclude the note of Dr. Charla and the applicant’s submissions regarding untested affidavit evidence as the respondent was not prejudiced as it was able to address these issues in its responding submissions.
ANALYSIS
The applicant is not entitled to an IRB from January 20, 2022 to date and ongoing.
11To receive payment for post-104-IRBs under s. 6 (2) of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
12The applicant was on maternity leave in the months leading up to the accident. Her highest level of education is high school and prior to her maternity leave she was working as a cashier at McDonald’s, working 40 hours per week and part-time at Food Basics working 18 hours per week. The applicant submits that the essential tasks of her employment included prolonged standing, walking, twisting, repetitive upper limb movements, grasping, holding, bending forward, lifting and carrying. She was also required to focus and interact efficiently with customers and co-workers. The respondent paid the applicant an IRB in the amount of $113.19 per week until January 20, 2022.
13The applicant argues that she suffers a complete inability to engage in any employment due to her accident-related physical, psychological and cognitive impairments. She submits that she suffers from chronic pain, post-concussive symptoms and a severe psychological impairment which has resulted in post-accident suicide attempts. In addition, her employment prospects are limited given her level of education and language proficiency skills. She relies on the disability certificate (OCF-3) of Dr. Nikols, chiropractor dated January 9, 2020 which supports she had a substantial inability to perform the essential tasks of her pre-accident employment. Further, she relies on the clinical notes and records (“CNRs”) of Dr. Manoharan, family doctor, the psychological assessment of Lital Grinberg, psychological associate dated June 11, 2021 and the chronic pain assessment of Dr. Karmy dated July 16, 2022.
14The respondent submits that the applicant has not met her onus in proving that she meets the post-104-week test for IRBs. It maintains that the applicant has returned to work post-accident and she has not proven that she sustained an income loss because she has failed to submit her 2021 and 2022, income tax records. It argues that the Tribunal should draw an adverse inference from the applicant’s failure to produce these records as she was ordered by the Tribunal to do so. The fact that she has not produced these records supports that they would not likely support her position. Further, the medical records support that she sustained soft-tissue injuries as a result of the accident. Moreover, the accident was not responsible for her post-accident suicide attempts. Instead, the pre- and post-medical records support that she has attempted suicide both pre- and post-accident because of marital discord. It also relies on the pre- and post-accident medical records of the applicant’s family doctor, hospital records and the insurer examinations (“IEs”) of Dr. Tugg, psychiatrist and Dr. Bangu, physiatrist both dated December 15, 2021. I prefer the opinions and reports of the respondent’s IE assessors over the applicant’s evidence for the following reasons.
Physical Impairments
15I find the OCF-3 completed by Dr. Nikols in January 2020 supports that the applicant sustained primarily soft-tissue physical injuries as the doctor notes headache, injury of muscle and tendon at neck level, sprain and strain of thoracic spine, dislocation, sprain and strain of joints and ligaments of shoulder girdle, lumbar spine and pelvis, muscle strain at shoulder region, nonorganic sleep disorders, cramp and spasm. The form also notes some psychological impairments which I will address later. Furthermore, I find the family doctor’s CNRs support that she sustained soft tissue injuries. The family doctor’s CNRs are sparse and there are large gaps of time in-between visits. She visited twice in 2019 following the accident where she complained of back pain and was diagnosed with back strain. Her next visit was on August 28, 2020, where she complained of back pain. In June 2021, she first raised emotional concerns with her doctor and requested to be referred to a psychiatrist. Of significance, with the exception of one entry from September 2021 (which reference sleep issues and pain with carrying) the family doctor’s CNRs do not reference any functional limitations. Further, no CNRs of the family doctor were submitted between November 3, 2021, to August 2022 and ongoing, which is the time period the applicant is seeking entitlement to an IRB.
16I place little weight on the chronic pain assessment of Dr. Karmy dated July 16, 2022, because I do not find the doctor’s 20 separate diagnoses are supported by the medical record including the records of the applicant’s family doctor. In addition, I find the doctor placed too much weight on the applicant’s self-reports about her post-accident functional limitations. For example, the applicant reported that she was unable to perform any of her job duties as she was unable to walk or stand continuously for more than 5-10 minutes or sit continuously for more than 15-20 minutes, without significant pain aggravation. Further, she could not lift anything weighing more than 5 pounds without significant pain. In addition, since the accident, repetitive upper limb movements, holding, and grasping became incompatible with her dominant shoulder impairment. Her pain is also exacerbated by neck and back movements, as well as by sustaining a prolonged position. Dr. Karmy also opined that the applicant’s psychological problems and cognitive difficulties, as well as non-restorative sleep pattern and chronic fatigue have also contributed to her inability to return to the workforce since the accident. However, there was no evidence of any functioning testing to support that the applicant has these limitations or that they are linked to any accident-related impairment. For these reasons, I give Dr. Karmy’s opinion little weight.
17I prefer the opinion and IE report of Dr. Bangu dated December 15, 2021, because it was more consistent with the doctor’s physical examination of the applicant and the family doctor’s CNRS. The report notes that the applicant had resumed light cooking, cleaning and laundry by pacing herself, with the exception of heavier outdoor tasks and grocery shopping because of vehicular anxiety. Dr. Bangu’s physical examination was normal with the exception that there were some limitations in the applicant’s range of movement and pain with palpation. The doctor diagnosed her with soft-tissue injuries to the neck, shoulders and back as a result of the accident. Dr. Bangu opined that the applicant did not sustain a complete inability to engage in any employment for which she is suited as long as that employment is within the limited to sedentary levels of strength capacity and allows for posture changes as needed. The doctor referred to the transferable skills analysis and labour market survey which identified other jobs the applicant could do. I will now address whether the applicant meets the post-104 test for IRBs from a psychological perspective.
Psychological Impairment
18I place little weight on the psychological assessment of Ms. Grinberg because the applicant’s reports to Ms. Grinberg about her psychological symptoms were inconsistent with the family doctor’s CNRs which did not note any psychological complaints or limitations prior to the date of the assessment. For example, she reported to Ms. Grinberg that she was having issues with concentration and memory, which was the first time she reported these symptoms since the accident. In fact, the applicant’s first complaint to her family doctor about any psychological symptoms post-date Ms. Grinberg’s assessment by four days to which she reported issues with sleep and mood swings which was causing relationship issues with her family. I find Ms. Grinberg accepted the applicant’s self-reports about her symptoms at face value without analyzing whether there were any contemporaneous medical records that support her complaints about any functional limitations. Further, Ms. Grinberg’s report does not address the applicant’s inability to carry out her employment tasks as a result of any accident-related psychological impairment. Ms. Grinberg’s report simply notes that the applicant was unemployed.
19I prefer the opinion and IE report of Dr. Tugg because it was more consistent with the CNRs of the applicant’s family doctor. Dr. Tugg determined that the applicant did not suffer a complete inability to carry out any employment tasks from a psychological perspective. Based on the evidence before me I accept this opinion.
20The applicant’s submissions state that post-accident she is suicidal, irrational and completely volatile. She referenced a recent a suicide attempt on June 23, 2023, and relied on the CNR of Dr. Charla to support her position that this was accident related. The applicant also contends that she is under heavy surveillance by her family due to her suicidal tendencies and will be unable to hold down any type of employment for the foreseeable future. I do not find the applicant’s post-accident suicide attempts to be accident-related for the following reasons:
i) The pre-accident CNRs of the family doctor support that the applicant made a suicide attempt in 2017 and that this was the result of marital discord.
ii) The applicant made another suicide attempt in August 2022. The respondent highlighted the hospital and family doctor’s CNRs which support that this attempt was also as a result of problems with the applicant’s marriage. The accident is not referred to in these records at all.
iii) I also place little weight on the applicant’s submissions that her most recent suicide attempt was accident-related because, submissions are not evidence. Further, Dr. Charla’s note dated June 27, 2023, simply states that the applicant is under the doctor’s care. No records were submitted to provide any context in relation to this incident to support that this is accident related.
21Although, I find the applicant’s suicide attempts concerning, I give the evidence little weight because there is no link between these incidents and the accident. I also agree with the respondent that the applicant’s post-accident counselling records would have been helpful in supporting whether any of these incidents were accident related.
22Finally, the applicant has failed to prove that she has sustained an income loss as a result of the accident for the time period she is disputing an IRB. As highlighted by the respondent, a hospital record dated August 10, 2022, notes that the applicant was working part-time at a daycare three days a week. A follow up CNR of the family doctor from September 2022 recommended that the applicant start working to be occupied and gain self-confidence. The applicant did not address this evidence in her reply to submissions. In my view, the fact that she has been engaging in some type of employment and her family doctor supports that she return to work, does not support her position that she has a complete inability to to engage in any employment for which she is reasonably suited by education, training, or experience. In addition, I draw an adverse inference from her failure to submit her income tax records from 2021 to 2022 to support that she has sustained an income loss despite the fact that the Tribunal ordered her to do so. I find the fact that she has not submitted these records more than likely supports that she has been engaged in some type of employment for the period in dispute.
23For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she is entitled to an IRB from January 20, 2022, to date and ongoing.
The applicant is not entitled to $480.00 for the balance of the psychological assessment proposed by 101 Assessments.
24To receive payment for a treatment and assessment plan under s. 14 and 15 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.
25The OCF-18 dated June 30, 2021, proposing the psychological assessment was prepared by Punita Manoharan, social worker and recommended 16 one-hour sessions of counselling for a total cost of $1,600.00, $450.00 for a progress report, $240.00 for counselling notes and evaluation; $240.00 for file review pre-session, and $200.00 for completion of the OCF-18 for a total cost of $2,730.00.
26On July 30, 2021, the respondent sent the applicant an explanation of benefits (“EOB”) advising that the OCF-18 was partially approved in the amount of $2,250.00. It approved the 16 one-hour sessions of psychotherapy; $450.00 for progress report and $200.00 for form completion. The respondent denied $240.00 for file review pre-session and $240.00 for counselling notes and evaluation. It relied on the Financial Service Commission of Ontario’s Superintendent’s Professional Services Guideline 03/14 (“Guideline”) which supports that an insurer is not required to pay any administration costs, overhead and related costs, fees, expenses and surcharges that increase the hourly rate or increase the fees payable for form completion. The respondent submits that s. 15(2)(b) of the Schedule supports its position that it is not required to pay for services which exceed the Guideline.
27The applicant argues that the denied fees are reasonable and necessary and should not be categorized as administrative costs. She contends that the file review is necessary in preparation for sessions. I disagree. I find that preparing for counselling sessions and taking notes during counselling sessions are included in the hourly rates in the Guideline. Further, I agree with the respondent that the service provider is attempting to charge extra for these services in an attempt to increase the hourly rate. I find the Guideline is clear that these types of fees are included in the hourly rate for services and s.15(2)(b) incorporates the Guideline into the Schedule. Finally, the applicant did not point me to any authority in support of her position that these fees are not administrative and are payable.
28For the above-noted reasons, I find she is not entitled to the balance of the OCF-18 for psychological treatment.
The applicant is not entitled to $2,460 for a neurological assessment, proposed by 101 Assessments.
29Section 25(1) 1 of the Schedule provides that an insurer shall pay reasonable fees for the preparation of an assessment that is reasonable and necessary as a result of an accident. The onus is on the applicant to prove a link between the assessment sought and an accident-related impairment.
30The OCF-18 dated June 30, 2021, was authored by Dr. Nikols and the goal was for pain reduction in order to return the applicant to her activities of normal living. Under barriers to recovery, it states pre-existing impairments, post-concussion symptoms, psychological and sleep impairments and severity of the accident/traumatic symptoms. Under the additional comments section, Dr. Nikols quotes from Ms. Grinberg’s assessment which notes the applicant complained of sleep disturbance and cognitive issues.
31On July 30, 2021, the respondent sent the applicant an EOB denying the OCF-18 advising that it was not reasonable and necessary. It stated there was no indication in the limited family doctor’s CNRs to support the assessment. Further, Dr. Bangu’s physiatry report noted a normal neurological examination. The respondent then requested that the applicant submit any updated records from September 2020. I agree with the respondent for the following reasons.
32As noted above, the applicant’s sparse visits to her family doctor prior to Ms. Grinberg’s assessment and this OCF-18 being submitted note back strain. The applicant submits that she hit her head off of the headrest and sustained a concussion. However, there were no complaints about post-concussive symptoms in the family doctor’s records, nor was the applicant diagnosed with a concussion or head injury prior to the submission of this OCF-18. Moreover, she did not make any complaints about cognition or poor memory to her family doctor prior to the submission of the OCF-18.
33The applicant has not met her onus in proving on a balance of probabilities that the neurological assessment is reasonable and necessary.
The applicant is not entitled to payment of interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have not determined that any benefits are overdue the applicant is not entitled to interest.
The applicant is not entitled to an award
34The 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. In light of my decision in this matter an award is not warranted as I have not determined that the respondent unreasonably withheld or delayed payment of any of the disputed benefits.
ORDER
35I find the applicant has not established entitlement to any of the disputed benefits, interest or an award. This application is dismissed.
Released: January 5, 2024
Rebecca Hines
Adjudicator