Licence Appeal Tribunal

Citation: Kamal v. Intact Insurance, 2024 ONLAT 23-007445/AABS

Licence Appeal Tribunal File Number: 23-007445/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:

Kathrin Kamal

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Kathrin Kamal, Applicant Dayana Soto Santana, Paralegal Roshan Shehaab, Counsel

For the Respondent: Fabio DiBona, ADR Specialist Tracy Brooks, Counsel Paras Gogna, Counsel

Court reporters: Kim Terryberry (Day 1) Siriana Taylor (Day 2)

HEARD: by Videoconference: July 16 to 17, 2024

OVERVIEW

1Kathrin Kamal, the applicant, was involved in an automobile accident on January 26, 2023, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2At the beginning of the hearing, the parties resolved issue 2(i) as listed in the Case Conference Report and Order dated January 11, 2024 ("CCRO") and the applicant agreed to withdraw this issue as it was no longer an issue in dispute. The remaining issues in dispute are listed below.

ISSUES

3The remaining issues in dispute are:

i. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from August 10, 2023 to date and ongoing?

ii. Is the applicant entitled to medical services proposed by 101 Assessments, as follows:

(a) $539.00 for interpretation services, in a plan submitted March 23, 2023 and denied April 14, 2023; and

(b) $2,460.00 for an orthopaedic assessment, in a plan submitted May 8, 2023 and denied May 25, 2023?

iii. Is the respondent liable to pay an award under s. 10 of 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?

RESULT

4The applicant is not entitled to IRB.

5The applicant is not entitled to the treatment plans in dispute as they are not reasonable and necessary.

6As no benefits are owing, it follows that the applicant is not entitled to interest and the respondent is not liable to pay an award.

PROCEDURAL ISSUES

The period in dispute for the IRB entitlement should be from August 10, 2023 to January 25, 2025

7The respondent submits that the period in dispute for IRB was incorrectly stated in the CCRO. It submits that IRB has been paid up to and including August 9, 2023 (inclusive). The applicant did not have any objections.

8Upon further consideration of the respondent's submissions, the legal tests under s. 5(1) and 6(1) of the Schedule and the date of the accident (i.e. January 26, 2023), the period in dispute on the issue of IRB entitlement should be from August 10, 2023 until January 25, 2025, for the following reasons.

9As at the date of the hearing, the applicant is still within the pre-104 weeks post-accident. Hence, s. 5(1) of the Schedule (i.e. the "substantial inability" or "pre-104 weeks" test) is the applicable test in the determination of this issue.

10I find that it would be premature to make a determination under s. 6(1) of the Schedule as the legal test involves an analysis of whether the applicant suffers a complete inability to engage in any employment of self-employment for which she is reasonably suited by education, training or experience, when the applicant had not reached the period post-104 weeks post-accident.

11Finally, throughout the hearing, both parties made submissions with respect to the "substantial inability" test for IRB which correlates to s. 5(1) of the Schedule.

The applicant's request to enter a Statement of Law as evidence is denied

12I deny the applicant's request to enter her written submissions titled "Statement of Law" as evidence.

13At the beginning of the hearing, the applicant requested consent to enter her written statement of law submissions into evidence. The applicant submit that the document contained her submissions with references to case law which she intends to rely on at the hearing.

14The respondent objected to the applicant's request and submitted that the document is around 100 pages long and has not had the opportunity to review the document as it was only filed sometime in the morning of the first day of the hearing.

15I find that it is inappropriate to submit written submissions at a videoconference hearing. The parties had the opportunity to make submissions and mutually consented to a videoconference hearing format during the case conference held on January 8, 2024.

16In my view, the respondent would have prepared its case on the basis that it is proceeding in a videoconference format and would not have prepared any written submissions. It would be procedurally unfair if written submissions would now be allowed to be entered as evidence at the stage on the first day of the hearing.

17Further, I find that the parties have the opportunity to provide their oral submissions and make reference to any case law in their closing statements and therefore any written submissions would not be necessary.

ANALYSIS

The applicant is not entitled to IRB from August 10, 2023 to date and ongoing pursuant to s. 5(1) of the Schedule

18The applicant is not entitled to IRB for the following reasons.

19To 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.

20The applicant submits that she suffers a substantially inability to perform the essential tasks of her employment as a customer service clerk at a furniture store due to her injuries in her neck, shoulders, chronic back pain and psychological impairments resulting from the subject accident. She relies on the testimonies of Dr. Ernest Youssef, family doctor, and Dr. Konstantinos Papazoglou, psychologist; the clinical notes and records ("CNRs") of Dr. Youssef; a s. 25 psychological assessment report dated April 13, 2023 by Dr. Papazoglou, psychologist; a psychological progress report dated January 18 2024 by Dr. Tulika Anand, clinical psychologist (under the supervision of Dr. Papazoglou); and an OCF-2 Employment Confirmation Form dated June 22, 2023 completed by the applicant's manager of the furniture store, Amir Oshana.

21The respondent submits that the applicant does not meet the "substantial inability" test for pre-104 weeks IRB and relies on the testimonies by Dr. Day, psychologist, and Dr. Sabrina Tu, MD. It further submits that the only reason the applicant had not return to work post-accident was due to her family obligations.

22There was no dispute between the parties that the applicant was working full-time before the accident. Of note, the parties acknowledged that the applicant was 8 weeks' pregnant on the day of the accident, with an expected due date for the applicant's second baby in September 2023.

23The OCF-2 completed by Mr. Oshana stated that the applicant was employed as a full-time customer service clerk at Jeevana Furniture Finishing Inc. from October 10, 2022 until January 26, 2023. The applicant took sick leave on January 27, 2023 (i.e. one day after the accident) and has not returned to work since the accident. He did not provide a job description or identified the essential tasks of the applicant's job.

24The applicant testified that her essential tasks at the furniture store included walking, communicating with customers, taking orders, sitting for long periods of time, and answering phone calls. The respondent did not challenge the applicant's description of her job.

25The applicant submitted that her chronic back pain, neck pain, inability to sit for long periods of time, and her concern for her reduced patience post-accident may lead to inability to communicate with customers were obstacles for why she has not returned to pre-accident employment.

26I find that Dr. Youssef's testimony and his CNR to be a credible source of evidence as he has been treating the applicant since the applicant was a teenager. However, his evidence is only limited to the extent of his observations, subjective complaints of the applicant and his diagnosis of the applicant's post-accident injuries. I did not find that his evidence was helpful in the determination if the applicant suffers a substantial inability to complete the essential tasks of her pre-accident employment for the following reasons.

27Although Dr. Youssef's CNR documented that the applicant complained of back pain, her range of motion in her back was normal. He noted that the applicant was off work from January 26, 2023 until July 13, 2023. Separately, Dr. Youssef completed a Medical Certificate dated August 14, 2023, for employment insurance sickness benefits where he opined that that the applicant has chronic back pain and would be incapable of working until September 15, 2023. There were limited medical records documenting that the applicant was unable to return to work beyond September 15, 2023, or documenting that the applicant continued to suffer back pain.

28During cross-examination, it was revealed that Dr. Youssef had very limited knowledge of the applicant's pre-accident employment, including the nature, hours and type of tasks she handled in her employment at the furniture store. He simply provided a blanket statement that the applicant was unable to work due to her pain complaints and being pregnant with her second baby. In my view, I am not persuaded by Dr. Youssef's evidence that the applicant suffers a substantial inability to perform the essential tasks of her employment due to his limited knowledge of the applicant's pre-accident employment which meant that he probably did not turn his mind to the types of tasks that are essential to the applicant's employment. Therefore, I find that his blanket statement has limited value.

29I find that Dr. Tu's findings in her report dated August 9, 2023 appear to be consistent with the rest of the medical evidence. Despite the applicant's complaints of shoulder and lower back pain, Dr. Tu opined that the applicant sustained uncomplicated soft tissue injuries as a result of the accident and does not suffer a substantial inability to perform the essential tasks of her pre-accident employment from a musculoskeletal perspective. During the physical examination, Dr. Tu noted that she observed inconsistencies between the informal and formal physical testing of the applicant, such as the applicant was observed to have an increased range of motion and increased range of movement and fluidity and strength on informal observation compared to formal testing.

30I am not persuaded by Dr. Papazoglou's s.25 psychological assessment report and Dr. Anand's psychological progress report that the applicant suffers a substantial inability to perform the essential tasks of her pre-accident employment. In his report, Dr. Papazoglou diagnosed the applicant with an adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (driving/passenger). However, he did not conclude that the applicant was unable to return to pre-accident employment.

31Dr. Papazoglou recommended the applicant undergo a work-site/occupational demands assessment to properly document the physical and functional demands of her employment and to provide an opinion on how she can best manage to return to either modified work/hours or pre-accident employment duties and responsibilities. This suggests that at the time of this assessment, Dr. Papazoglou did not have sufficient information or the knowledge with regards to the applicant's pre-accident employment to provide an opinion whether or not the applicant was able to return to pre-accident employment.

32The applicant did not refer to any evidence or made any submissions on whether or not she had undergone a work-site/occupational demands assessment to assess her pre-accident employment duties. Accordingly, the absence of a conclusion from Dr. Papazoglou that the applicant meets the pre-104 IRB test and the apparent informational gap that led him to recommend the assessment does not assist the applicant in persuading me that she is entitled to an IRB.

33In Dr. Anand's report, she reported that the applicant made progress after receiving therapy sessions which has helped her to focus on developing the skills necessary to improve her self-esteem and support her in gradually returning to her pre-accident activities. However, like Dr. Papazoglou's report, Dr. Anand does not opine that the applicant suffers from a substantially inability to return to her pre-accident employment.

34Given the reasons above, I find that the applicant has not met her onus to prove that she suffers a substantial inability to perform the essential tasks of her pre-accident employment that warrants entitlement to IRB from August 10, 2023 to date.

The applicant is not entitled to the treatment plan for interpretation services

35I find that the applicant is not entitled to the treatment plan for interpretation services as it is not reasonable and necessary.

36This treatment plan was completed by Dr. Bill Nichols, chiropractor, who proposed interpretation services for a psychological assessment for three hours at $100 per hour and an OCF-18 document completion fee of $200.00 (i.e. total of $539.00).

37To 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.

38The applicant submits that she requires interpretation services for the psychological assessment because she only speaks a basic level of English and cannot understand complicated terms which may be used during the proposed psychological assessment.

39The respondent submits that the applicant does not require interpretation services because she attended high school in Canada and is able to read, write and communicate in English. It also submits that the applicant was able to communicate with the IE assessors in English without difficulty. It relies on the applicant's testimony, a statement made by applicant to the adjuster, and the testimonies of Dr. Day and Dr. Tu, IE assessors.

40Although Dr. Youssef, family doctor, testified that he communicates with the applicant in Arabic language, the applicant testified that she is able to speak to her treating physicians in simple English.

41Both Dr. Day and Dr. Tu both testified that during their IE examinations with applicant, they did not notice any communication difficulties with the applicant in English and that the applicant did not express that she required an Arabic interpreter.

42Further, in Dr. Anand's psychological progress report relied on earlier by the applicant, there was no indication that this in-person assessment with the applicant required the assistance of an interpreter and therefore I find that it would have been conducted in English.

43Given the above reasons, I do not find that the proposed treatment plan for interpretation services is reasonable and necessary.

The applicant is not entitled to an orthopedic assessment

44I find that the applicant is not entitled to an orthopaedic assessment as it is not reasonable and necessary.

45This treatment plan was completed by Dr. Tajedin Getahun, orthopaedic surgeon, who proposed an orthopaedic assessment for a total amount of $2,460.00.

46The applicant submits that she continued to suffer neck, shoulder and back pain and relies on the CNRs of Dr. Youssef and including the medical certificate completed by Dr. Youssef where he stated that the applicant suffers from chronic back pain. In response, the respondent relies on Dr. Tu's IE report dated August 9, 2023.

47I am not persuaded by the medical evidence tendered by the applicant and her treating practitioners that an orthopaedic assessment is reasonable and necessary. Neither Dr. Youssef nor Dr. Papazoglou recommended the applicant to undergo an orthopaedic assessment.

48During the hearing, Dr. Youssef testified that he was unable to prescribe any medications or recommend any further treatments for the applicant's accident-related injuries due to her pregnancy at the time of the accident, and post-birth as she was required to breastfeed her baby. Dr. Youssef testified that he only referred the applicant to the gynecologist as the baby was her main concern at the time post-accident. Further, during the examination-in-chief of Dr. Youssef, he was asked if he would recommend physiotherapy to the applicant now that the applicant has given birth, Dr. Youssef did not provide an answer to that question.

49As mentioned above, I am persuaded by Dr. Tu's IE musculoskeletal assessment report where she opined that the applicant suffered soft tissue injuries as a result of the accident. Dr. Tu also found "no compelling evidence in the current literature for further medical intervention, such as an orthopaedic assessment, 6 months after uncomplicated strains and uncomplicated soft tissue injuries have been sustained, such as in [the applicant's] case". She opined that at least some degree of the applicant's clinical presentation was attributable to non-organic, pain-focused behaviour. Dr. Tu opined that the proposed treatment plan was not reasonable or necessary.

50The applicant did not further point to any medical evidence to rebut Dr. Tu's report.

51Therefore, I find that the applicant is not entitled to the proposed treatment plan for an orthopaedic assessment as it is not reasonable and necessary.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Award

53The 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.

54As there are no benefits unreasonably withheld or delayed, it follows that no award is payable.

ORDER

55The applicant is not entitled to IRB.

56The applicant is not entitled to the treatment plans in dispute as they are not reasonable and necessary.

57No interest or award are payable.

58The application is dismissed.