Citation and Parties
Licence Appeal Tribunal File Number: 24-004586/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:
Inderjit Ahir
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Mariya Verkhovets, Counsel
For the Respondent:
Jonathan Schrieder, Counsel
HEARD by Videoconference:
January 27-29, 2025
OVERVIEW
1Inderjit Ahir, the applicant, was involved in an automobile accident on March 10, 2022, 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 of Canada, 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 benefit (“IRBs”) in the amount of $400.00 per week from March 16, 2022 to date and ongoing?
ii. Is the applicant entitled to $1,809.50 for physiotherapy services, proposed by 101 Physio Brampton in a treatment plan/OCF-18 (“plan”) submitted on June 28, 2022?
iii. Is the applicant entitled to $3,736.02 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on October 20, 2022?
iv. Is the applicant entitled to $3,420.83 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on February 13, 2023?
v. Is the applicant entitled to $4,128.69 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on June 13, 2023?
vi. Is the applicant entitled to $3,196.02 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on October 10, 2023?
vii. Is the applicant entitled to $2,573.00 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on November 13, 2023?
viii. Is the applicant entitled to $2,153.72 for physiotherapy services, proposed by 101 Physio Brampton in a plan submitted on January 31, 2024?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3Prior to the hearing, the applicant withdrew the issues of whether the applicant sustained a catastrophic impairment as defined by the Schedule and issues 10 to 14 as listed in the case conference report and order (“CCRO”).
RESULT
4The applicant is not entitled to IRBs.
5The applicant is not entitled to the plans in dispute.
6As no benefits are payable, the applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
Request to allow new evidence and authorities was granted
7I granted the respondent’s request to add a document to their evidence and rely on two prior decisions of the Tribunal.
8During its opening, the respondent sought to rely on two prior decisions of the Tribunal in support of its position. Neither of these decisions were included with the respondent’s submissions submitted prior to the hearing.
9The respondent submitted that the decisions were publicly available and should be within the knowledge of the parties and therefore there was no prejudice to the applicant in allowing it to rely on these authorities. Furthermore, it submitted that there was still ample time for the applicant to review the decisions prior to the end of the hearing.
10The applicant submitted that the authorities should not be considered as they were not included within the applicant’s materials and were sprung upon her at the eleventh hour. She further submitted that the deadlines outlined in the CCRO and Licence Appeal Tribunal Rules, 2023 (“Rules”) had passed and therefore the respondent should not be permitted to rely on the authorities.
11Rule 9.4.4 provides that the Tribunal may, in determining whether late filed materials can be used at a hearing, consider any relevant factor, including the factors set out in Rule 9.3 which are:
i. the reasons for non-compliance;
ii. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;
iii. the extent to which the substance of the information or testimony lies within the knowledge of the other party;
iv. whether the other party opposes the admission of the evidence or testimony; and
v. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
12I found that the respondent could rely on the authorities despite its non-compliance with the disclosure requirements of Rule 9. I found that it would not be prejudicial to the applicant to allow the respondent to rely on the authorities because there was sufficient time for the applicant to review the authorities and adequately prepare to argue their applicability.
13In addition to the two authorities, the respondent sought to rely on the results of a Google search during its cross-examination of the first witness.
14The applicant objected to the use of the Google search results when it was put to the witness on the basis that it was not included in the respondent’s document brief and was prejudicial.
15The respondent submitted that the document had been previously disclosed to the applicant via email the day before the commencement of the hearing. It further advised that it was not prejudicial to the applicant in that there was time to review the document prior to the hearing.
16I admitted the Google search results document. The document in question consists of two pages containing three images. I found that there was ample time for the applicant to consider and respond to the document given the brevity of its contents. I also found the images to be relevant to the issues in dispute in this hearing.
ANALYSIS
The applicant is not entitled to pre-104 week IRBs
17I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to pre-104 week IRBs.
18To 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.
19The applicant did not testify and did not identify the essential tasks of his employment during the hearing; however, the OCF-2 submitted by the applicant indicates that, at the time of the accident, the applicant was working full time as the head chef at Taste of Punjab Sweets & Treats restaurant. His job description included cooking, preparation, and kitchen management and the essential tasks of his employment are identified as standing and cooking. I find that the essential tasks of the applicant’s employment at the time of the accident are as outlined in the OCF-2.
20The applicant is seeking IRBs from March 16, 2022. The respondent initially paid IRBs to the applicant until February 2, 2023 and then ceased payment of the benefit based its section 44 reports which concluded that the applicant no longer suffered from a substantial inability to engage in the essential tasks of his pre-accident employment duties. Therefore, I find that the applicant is seeking pre-104 week IRBs from February 2, 2023 to March 13, 2024.
21The applicant submits that he is entitled to pre-104 week IRBs and relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Aakash Modi and the section 25 reports of Dr. Mehdi Lotfalizadeh, psychologist; Dr. Tajedin Getahun, orthopaedic surgeon; Mr. Julian Amchislavsky, occupational therapist; and Dr. Roya Salehoun, chiropractor.
22The respondent submits that the applicant is not entitled to pre-104 week IRBs because he is able to perform the essential tasks of his employment and it relies on a multidisciplinary assessment conducted by Dr. Alison Richards, chiropractor; Dr. Ramunas Saplys, orthopaedic surgeon; Dr. Jamsheed Desai, neurologist; Dr. Debra Mandel, psychologist; Pearl Mark, kinesiologist; and Nancy van Loenen, occupational therapist. In addition, the respondent relies upon surveillance and social media evidence which it submits supports the position that the applicant is able to work.
23The totality of the medical evidence submitted by the applicant appears to support the position that the applicant is unable to work; however, the bulk of the findings heavily rely upon the applicant’s self-reporting of his impairments and his performance on various functional ability tests. The veracity of the medical findings is necessarily linked to the accuracy of the information provided to medical experts and the applicant’s observed level of functionality. The respondent calls into question the conclusions of the section 25 assessments and submits that its surveillance of the applicant demonstrates the applicant’s ability to work.
24Dr. Lotfalizadeh’s report, dated January 9, 2024, notes that the applicant reported that he was currently unable to work because he was unable to bend, had limited use of his left hand which prohibits him from lifting a frying pan with that hand, and cannot remain standing for longer than 15-20 minutes.
25During his virtual assessment with Dr. Getahun, dated June 8, 2022, the applicant reported that he had not worked since the accident due to his neck pain, back pain, and left-hand pain. Dr. Getahun opined that the applicant suffered a substantial inability to perform the essential tasks of his pre-accident employment as he would be unable to tolerate the required standing, walking bending, lifting, and carrying of his pre-accident position. On January 29, 2024, Dr. Getahun assessed the applicant in person, and again, the applicant advised that he had been unable to return to work due to his neck pain, back pain, and left-hand pain which preclude him from completing the required standing, walking, bending, lifting, and carrying demands of his employment.
26The respondent submits that the applicant’s self-reporting should be scrutinized based on surveillance, which was conducted on September 22, September 23, September 30, October 4, October 7, and October 11, 2023. During the surveillance, the applicant was seen walking, operating a motor vehicle, grocery shopping, greeting customers, and working at a restaurant. The applicant did not use any visible medical aids or assistive devices and did not show any signs of physical restriction, distress, or impairment. The surveillance depicts the applicant working long hours at a restaurant, from open in the morning until close at approximately 11pm. The applicant was seen working at the restaurant on every day of the surveillance.
27The surveillance evidence is corroborated by social media and Google search results. A Facebook post dated July 29, 2022 depicts the applicant standing behind the counter of a restaurant with an accompanying comment indicating that “after years of hard work, we have finally opened my first restaurant”. In addition, the results of a Google search show a November 8, 2022 advertisement for a restaurant in which the applicant is depicted.
28I am persuaded by the surveillance and social media evidence and assign little weight to the applicant’s medical reports because I find the applicant’s self-reporting to be unreliable. The applicant advised his assessors that he was unable to work and had not worked since the subject accident; however, this reporting is contradicted by the surveillance evidence. Dr. Modi, Dr. Lotfalizadeh, and Dr. Getahoun all testified during cross examination that they would be surprised to know that the applicant was working for any significant period of time which I find highlights the lack of forthright disclosure by the applicant to his medical assessors.
29With respect to the applicant’s section 25 functional capacity evaluation, conducted on November 10, 2022, Dr. Salehoun opines that the applicant was unable to return to work as a chef or any other repetitive type of work. This finding is based on the fact that the applicant was unable to stand for long periods of time without having radiculopathy into his left leg or do repetitive work with his left hand. Dr. Salehoun concluded that the applicant is only capable of sedentary to light capacity work duties.
30Similarly, during the applicant’s occupational therapy assessment with Mr. Amchislavsky, dated February 4, 2024, the applicant was unable to complete the community-based tasks. During a grocery store shopping task, the applicant was unable to push an empty cart, and when asked to get a menu from a restaurant, the applicant advised that he was unable to do so and needed to go home and lay down.
31I am not persuaded by Dr. Salehoun’s and Mr. Amchislavsky’s reports because I find the applicant’s performance during direct observation to be unreliable due to the presence of symptom magnification as noted by three different section 44 assessors. Dr. Saplys noted that there was evidence of symptom magnification during his physical examination. Dr. Mandel noted that the applicant’s Structured Inventory of Malingered Symptomatology score was greater than the recommended cut-off and may be suggestive of symptom magnification. Finally, Ms. Mark found that the applicant demonstrated a high degree of varied effort and opined that the applicant should be capable of greater abilities than were demonstrated during her test protocols.
32In addition, I find that the applicant’s observed functionality during his occupational therapy assessment is in stark contrast to the surveillance evidence. As previously noted, the applicant could not even push an empty grocery cart during Mr. Amchislavsky’s assessment; however, the surveillance conducted approximately five months earlier shows the applicant independently shopping for groceries and loading his car. While I am alive to the fact that the surveillance evidence captures a point in time, I am nonetheless persuaded that it more accurately reflects the applicant’s functional capabilities than what was observed during Mr. Amchislavsky’s community-based tasks, especially in light of the evidence of symptom magnification.
33Finally, I am persuaded by the March 12, 2024 CNR from Dr. Modi which indicates that the applicant was working at the time.
34Based on the foregoing, I find that the applicant has not met his onus to demonstrate that he is unable to complete the essential tasks of his employment. To the contrary, I find on a balance of probabilities that the applicant was working at a restaurant and therefore does not meet the test for entitlement to pre-104 week IRBs.
The applicant is not entitled to post-104 week IRBs
35I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to post-104 week IRBs.
36To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
37The applicant did not make submissions regarding post-104 week IRBs and did not testify as to his current employment status. I am therefore unable to determine what vocations the applicant may be reasonably suited to by education, training, or experience.
38Nonetheless, for the same reasons as above, I find that the applicant was working prior to the commencement of the post-104 week IRB period, which began on March 14, 2024. I am persuaded by the respondent’s surveillance which shows the applicant working and further note that the applicant reported to Dr. Modi that he was working on March 12, 2024, two days prior to the start of the post-104 week IRB period.
39I find that the applicant has not provided evidence to suggest that he did not continue to work after this point in time, and therefore I find that that the applicant does not suffer from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
40As such, I find that the applicant is not entitled to post-104 week IRBs.
The applicant is not entitled to the plans in dispute
41I find that the applicant has not demonstrated that the plans for physiotherapy are reasonable and necessary.
42To 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.
43The applicant is seeking funding for seven physiotherapy plans from 101 Physio Brampton. The applicant made submissions on all the plans as a whole, and so I have considered them on this basis.
44The plans identify the goals of treatment as pain reduction, increased range of motion, and increased strength with the functional goals of returning to activities of normal living, returning to modified work activities, and increasing functional status. The plans outline various modalities to help achieve these goals including electrotherapy treatment, phototherapy/laser, ultrasound, paraffin bath, stretching exercises, strengthening exercises, balance exercises, posture exercise, range of motion exercises, stabilization exercises, mobilization exercises, health bridges exercises, manual therapy, and chiropractic treatment.
45The applicant again relies on the CNRs of Dr. Modi and the section 25 report of Dr. Getahun in addition to an EMG assessment report by Dr. Vincenzo Basile, neurologist, all of which recommend ongoing physiotherapy.
46The respondent again relies on the multidisciplinary assessment conducted by Dr. Alison Richards, chiropractor; Dr. Ramunas Saplys, orthopaedic surgeon; Dr. Jamsheed Desai, neurologist; Dr. Debra Mandel, psychologist; Pearl Mark, kinesiologist; and Nancy van Loenen, occupational therapist.
47The CNRs of Dr. Modi make numerous recommendations for ongoing physiotherapy and Dr. Getahun’s June 8, 2022 report recommended physiotherapy and chiropractic interventions in a multidisciplinary supervised setting to optimize his outcome; however, I am again not persuaded by these recommendations as they are largely based on the applicant’s self-reporting of symptoms, which as previously discussed, I find to be unreliable.
48An EMG assessment report was conducted by Dr. Basile on March 14, 2023 which found some MVA-related peripheral neurologic compromise. Dr. Basile opined that the applicant would likely require ongoing physiotherapy and massage therapy at a rate of at least 2-3 times per week to help with his recovery.
49While I am alive to Dr. Basile’s recommendation, I find that ongoing physiotherapy is not reasonable based on the applicant’s own contemporaneous reporting to his family doctor that physiotherapy is not aiding in his recovery. On January 24, 2023, the applicant advised Dr. Modi that he was going for massage and physiotherapy; however, he did not feel as though it was helping. Again, on February 16, 2023, the applicant advised Dr. Modi that he was attending physiotherapy and that it feels good when he is there, but once he leaves, the pain gets worse later in the day. Finally, on December 12, 2023, the applicant advised Dr. Modi that he was going to physiotherapy but “does not feel it is effective”.
50The applicant’s assertion that physiotherapy is not aiding in his recovery is corroborated by the opinion of Dr. Saplys who noted in his section 44 report that the applicant’s left metacarpal fracture has healed and that there is no indication for facility-based treatment.
51Based on the foregoing, I find that the applicant has not demonstrated on a balance of probabilities that the plans for physiotherapy are reasonable and necessary.
The applicant is not entitled to interest
52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
53As there are no payments owed, the applicant is not entitled to interest.
The applicant is not entitled to an award
54The 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.
55As I have found that the applicant is not entitled to any of the benefits in dispute, and there is no evidence of any other benefits being unreasonably denied or delayed, there is no basis for an award under s. 10 of Reg. 664.
ORDER
56For the reasons outlined above, I find:
i. The applicant is not entitled to IRBs;
ii. The applicant is not entitled to the plans in dispute;
iii. As no benefits are payable, the applicant is not entitled to interest or an award; and
iv. The application is dismissed.
Released: March 10, 2025
Nathan Prince
Adjudicator