Mamulaishvili v. Echelon Insurance, 2024 CanLII 94146

Citation: Mamulaishvili v. Echelon Insurance, 2024 ONLAT 23-011748/AABS

Licence Appeal Tribunal File Number: 23-011748/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:

Irakli Mamulaishvili

Applicant

and

Echelon Insurance

Respondent

DECISION

ADJUDICATORS:

Ludmilla Jarda Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Irakli Mamulaishvili, Self-Represented

For the Respondent:

Lisa Dely, Adjuster

Suzanne Armstrong, Counsel

Interpreter (Georgian):

Tamar Chighladze

Court Reporter:

Prashanth Thambipillai

HEARD by Videoconference:

August 21, 2024

OVERVIEW

1Irakli Mamulaishvili (the “applicant”) was involved in an automobile accident on March 31, 2021, 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 Echelon Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from April 7, 2021 to date and ongoing?

2. Is the applicant entitled to $2,799.00 for medical services, proposed by MediAssess Evaluations Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted September 18, 2021?

3. Is the applicant entitled to $2,373.00 for occupational therapy services, proposed by MediAssess Evaluations Inc. in a treatment plan submitted September 18, 2021?

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

RESULT

3For the reasons that follow, we find that:

1. The applicant is not entitled to IRB.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

ANALYSIS

Background

4On March 31, 2021, the applicant was involved in a motor vehicle accident when he was travelling on Allen Road in Toronto, Ontario. However, due to the applicant’s inconsistent reporting, the mechanics of the accident are unknown. Specifically, on August 17, 2021, the applicant reported to Dr. Shafik Dharamshi, physician, that he was sideswiped by another vehicle travelling in the same direction as him. On August 18, 2021, he reported to Dr. Shahriar Moshiri, psychologist, that the back passenger side was struck by another vehicle. On October 29, 2021, he reported to Dr. Ida Cavaliere, physiatrist, that he was struck by a third-party vehicle on the passenger side door. While the applicant described the accident as a T-bone accident, Dr. Cavaliere noted in her physiatry assessment report dated November 15, 2021, that the medical documentation provided suggested that the applicant had been rear-ended.

5The applicant reported to Dr. Dharamshi, Dr. Moshiri, and Dr. Cavaliere (the “IE assessors”) that he did not hit his head or lose consciousness as a result of the impact. The applicant confirmed that there was no secondary collision, and that the airbags did not deploy. He was ambulatory at the scene. Emergency services were not called at the scene. Rather, after the applicant’s vehicle was towed, he obtained a rental vehicle, and he drove home.

6The applicant advised the IE assessors that he did not seek medical attention at the hospital in the days following the accident. He told Dr. Dharamshi that two days after the accident, he noted pain to his neck, right should, left elbow, and low back.

7The applicant reported to the IE assessors that he consulted his family physician, but the date on which he consulted his family physician is unknown as those records were not included in the evidentiary records. The clinical notes and records of Dr. Maryam Mohammady, the applicant’s family physician, pre-date the accident, and they were only provided for the period of July 4, 2018 to January 20, 2021. Also, while the applicant told Dr. Cavaliere that he saw his family doctor a few days after the accident, he told Dr. Moshiri that he saw his family doctor two weeks after the accident.

8In any event, the applicant reported to Dr. Cavaliere that during his first consultation with his family physician, he was advised that he sustained soft tissue injuries as result of the accident, and physiotherapy was recommended. Also, while the applicant reported that x-rays of his right shoulder were ordered, none of the IE assessors had a copy of the diagnostic imaging report, and no diagnostic imaging reports were included in the evidentiary record. Further, while the applicant reported to Dr. Moshiri on August 18, 2021, that he did not have any fractures, he later told Dr. Cavaliere on October 29, 2021, that he could not recall the findings of the diagnostic imaging report.

9In terms of treatment, following the accident, the applicant underwent massage therapy, stretching and strengthening exercises, and electric modalities. He discontinued treatment in mid October 2021.

Income Replacement Benefit

10Two sections of the Schedule define the process required to determine entitled to IRB. To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed or self-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 his employment, which tasks he is unable to perform, and to what extent he is unable to perform them.

11To receive payment for 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 experienced.

12The applicant bears the burden of proving, on a balance of probabilities, that he meets these tests and criteria.

13Section 36(4) of the Schedule states that within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

(a) pay the specified benefit;

(b) give the applicant the notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(c) send a request to the applicant under subsection 33(1) or (2).

14Section 35(1) of the Schedule provides that is an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit, and the caregiver benefit, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.

15At the time of the accident, the applicant was 40 years old. In terms of education, he completed a 5-year university degree in economics of marine transportation in Georgia in 2002. In terms of his training and experience, his pre-accident employment history includes working in the construction industry as a labourer, bricklayer, and swing stage operator. He also has experience operating his own construction company and working as a subcontractor.

16According to his Application for Accident Benefits (OCF-1) dated April 12, 2021, prior to the accident, the applicant was last employed as a labour/construction worker with Triple S Restoration in December 2020. He worked 50 hours per week, and he earned a gross income of $60,000.00. Further, based on his 2019 Notice of Assessment and 2020 Notice of Assessment, the applicant reported earning a total income of $13,749.00 and $16,616.00 respectively. Further, based on his 2021 Income Tax Return, he reported earning self-employment income in the amount of $12,600.00.

17The applicant submits that he is entitled to IRB at the rate of $400.00 per week for the period of April 7, 2021 to date and ongoing. The applicant states that there are medical notes, medical assessments, and diagnostic imaging reports that support his entitlement to benefits; however, he did not tender any documentary evidence in support of his claim for IRB. Rather, he primarily relies on his oral testimony.

18In response, the respondent submits that the applicant’s claim for IRB should be dismissed on the basis that his application for IRB is incomplete. The respondent states that the applicant failed to submit an Employer’s Confirmation form (OCF-2), an Election of Income Replacement, Non-Earner or Caregiver Benefit form (OCF-10), and other supporting documentation which were requested pursuant to s. 33 of the Schedule. The respondent relies on A.H. v. Aviva Insurance Company, 2021 CanLII 64233 (ON LAT) (“A.H.”) and Ganea v. Travelers Insurance, 2021 CanLII 108368 (ON LAT) ("Ganea”).

19Alternatively, the respondent submits that the applicant sustained soft tissue injuries as a result of the accident and that he has failed to discharge his onus of proving entitlement to IRB. The respondent argues that there is no documentary evidence to support that the applicant was employed or self-employed at the time of the accident. The evidence does not support entitlement to a weekly IRB in the amount of $400.00 as the applicant’s financial records indicated that he consistently earned less than $17,000 per year as opposed to $60,000.00 per year. The respondent also relies on the reports of the IE assessors including a general practitioner assessment report completed by Dr. Dharamshi, and a psychology assessment report completed by Dr. Moshiri, both dated September 3, 2021, as well as Dr. Cavaliere’s report dated November 15, 2021.

The applicant is not entitled to IRB for the period of April 7, 2021 to date and ongoing

20We find that the applicant has failed to demonstrate, on a balance of probabilities, that he is entitled to IRB in the amount of $400.00 per week from April 7, 2021 to date and ongoing.

21The applicant testified that he was working at the time of the accident, and that he was on his way home from work when the accident occurred. He also testified that following the accident, he was unable to continue to work because he was unable to do any physical work. However, the applicant did not provide any further evidence regarding his entitlement to IRB.

22Indeed, the applicant did not provide any medical evidence to support that he sustained injuries as a result of the accident, and to corroborate his claim that his accident-related injuries prevented him from working. He did not provide any evidence identifying the essential tasks of his employment at the time of the accident, which tasks he was unable to perform, or to what extend he was unable to perform them. He did not lead any evidence to support that he suffered from a substantial inability to perform the essential tasks of his employment for the period of April 7, 2021 to March 29, 2023 and that he suffers from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience for the period of March 30, 2023 to date and ongoing. Accordingly, we find that the applicant has not met his burden of proving his entitlement to IRB.

23We further find that the applicant is barred from proceeding with his claim for IRB in any event since his application for this specified benefit is incomplete.

24The applicant submitted a Disability Certificate (OCF-3) dated April 24, 2021, completed by Dr. David Huang, chiropractor, and it was received by the respondent on April 29, 2021. In the OCF-3, Dr. Huang indicated that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident and that he could not return to work on modified hours and/or duties, which is the test for entitlement for IRB. Dr. Huang also indicated that the applicant suffered from a complete inability to carry on a normal life, which is the test for entitlement to non-earner benefits (“NEB”). Dr. Huang noted that the applicant had difficulty engaging in the following activities: bending, lifting, carrying, overhead activities, pushing, pulling, grasping, prolonged sitting, standing, and walking.

25Given that Dr. Huang indicated that the applicant may be eligible for both IRB and NEB, within 10 business days of receiving the OCF-3, i.e., on May 12, 2021, pursuant to s. 33 of the Schedule, the respondent requested that the applicant submit an OCF-10 to complete his application for IRB, a specified benefit. Further, since the applicant had worked for 26 out of the 52 weeks prior to the accident, the respondent also requested that the applicant submit a completed OCF-2.

26Despite repeated requests from the respondent on September 9, 2021, January 7, 2022, and November 3, 2023, the applicant did not submit the requested forms nor did he provide the various financial records and employment records requested by the respondent, including copies of his pay-stubs for 4 weeks prior to the accident and the corresponding bank statements, a complete employment file from Triple S Restoration, his 2021 and 2022 Notice of Assessments, his bank records from one year pre-accident to the present, and his T4 slips for all post-accident. To date, the applicant has not submitted an OCF-10, an OCF-2, or any of the other financial records and employment records requested by the respondent.

27In A.H., the Tribunal held at paragraph 21 as follows:

Section 35 of the Schedule requires an insured person to elect the benefit they wish to receive within 30 days of receiving a notice of election. Election of benefits is a statutory requirement. The language of s. 35 is mandatory and unambiguous. Failure to complete this step renders an application for a specified benefit incomplete.

28The Tribunal further noted in Ganea at paragraph 15 as follows:

Section 35 of the Schedule is clear and mandatory. It requires an insurer to notify the insured person of their obligation to elect the benefit he or she wishes to receive when the information provided indicates possible entitlement to two or more specified benefits. As such, where an application indicates possible entitlement to more than one specified benefit, more is required than an OCF-1 and an OCF-3 to “complete” the application for benefits: an OCF-10 is also required.

29In the present case, the applicant submitted an OCF-1 and an OCF-3, but he did not submit an OCF-10. By failing to submit a completed OCF-10, we find that the applicant failed to comply with a request under ss. 33 and 35 of the Schedule, and as a result, the applicant’s application for IRB is incomplete. Further, as the respondent’s obligation to pay IRB under s. 36(4)(a) of the Schedule has not been triggered, the applicant is not entitled to IRB.

30We find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are reasonable and necessary.

31To 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.

32The treatment plan dated September 18, 2021, in the amount of $2,799.00 proposes a chronic pain assessment, completion of the treatment plan, and Georgian interpretation services. The goal of the treatment plan is to reduce pain, and to evaluate the extent of the applicant’s injuries. The functional goals are to return to activities of normal living and to get guidance on multidisciplinary care.

33The treatment plan dated September 18, 2021 in the amount of $2,373.00 proposes an attendant care assessment, the completion of an assessment of attendant care needs (Form 1), completion of the treatment plan, and interpretation services. The goal of the treatment plan is to reduce pain and to make recommendations for the future provision of attendant care services. The functional goals are to return to activities of normal living and to offer an opinion about the level and amount of attendant care required by the applicant.

34The applicant has not tendered any evidence regarding his entitlement to the dispute treatment plans. He did not testify to the reasonableness or necessity of the disputed treatment, nor did he make any submissions regarding the goals of the treatment plans, how the goals would be met to a reasonable degree, or the benefit in relation to the cost. As such, the applicant has not met his evidentiary burden and proven that the disputed treatment plans are payable.

35We further find that there is also no compelling evidence to support that the treatment plan for a chronic pain assessment is reasonable and necessary. There is no medical evidence in the evidentiary record to corroborate the applicant’s claim that he may be suffering from chronic pain. Further, based on the unrefuted opinion of Dr. Cavaliere, the applicant’s physical accident-related injuries are soft tissue in nature, and a chronic pain assessment is not reasonable, necessary, or required. Rather, Dr. Cavaliere recommends, among other things, that the applicant continue his home-based exercise program and continue focusing on self massage (ball or foam roller), postural retraining, strengthening the core musculature, strengthening deep neck flexors, and the hip girdle, pacing strategies, load splitting techniques, proper lifting techniques, and re-conditioning, along with gradual return to aerobic exercise. This could include proper forearm stretching with isometric to eccentric strengthening of the common extensors. This would also include daily aerobic exercise (non-impact based or water based) for 30 minutes per day.

36We also agree with the respondent’s submissions that there is no compelling evidence to support that the applicant meets the criteria for chronic pain under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6^th Edition (the “Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set fourth that a person must meet at least three out of six criteria to support a diagnostic of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including working, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

37As noted by the respondent, there is no evidence that the applicant is dependant on prescription drugs. There is no evidence that the applicant is excessively dependant on his healthcare providers, his spouse, or his family. There is no evidence that the applicant has withdrawn from the social milieu, including work and recreation. There is no evidence that the applicant failed to restore to his pre-injury function after a period of disability.

38We also find that there is no compelling evidence to support that the treatment plan for an attendant care assessment is reasonable and necessary. The applicant reported to Dr. Cavaliere that following the accident, he was independent with his personal care, ambulation, and transfers. He also reported that he returned to all of his previously completed household chores, albeit at a lesser frequency due to pain.

39Finally, the applicant did not lead any evidence to support that the disputed treatment plans were incurred.

40Accordingly, the applicant has not demonstrated entitlement to the treatment plans in dispute.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

ORDER

42For the reasons outlined above, we find that:

1. The applicant is not entitled to IRB.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

43The application is dismissed.