Licence Appeal Tribunal File Number: 24-006948/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:
Rita Bantsimba Moyare
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Shen Subramaniam, Counsel
For the Respondent:
Andrea L Bandow, Counsel
HEARD by Videoconference:
February 4-5, 2025
OVERVIEW
1Rita Bantsimba Moyare, the applicant, was involved in an automobile accident on January 16, 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, Aviva 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:
- Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 23, 2022, to ongoing?
i. The applicant was paid an IRB benefit in the amount of $400.00 per week from January 23, 2022, to October 30, 2022, and therefore the disputed time period for IRB entitlement is October 31, 2022, to date and ongoing.
- Is the applicant entitled to the physiotherapy services proposed by North Toronto Rehabilitation & Physiotherapy Clinic for Chiropractic, Massage, as follows:
i. $1,382.24 in a treatment plan/OCF-18 (“plan”) dated July 8, 2022;
ii. $1,189.55 in a plan dated August 29, 2022.
iii. $1,096.62 in a plan dated October 4, 2022; and
iv. $983.81 in a plan dated January 10, 2023?
Is the applicant entitled to $1,741.88 ($3,741.88 less $2,000.00 approved) for psychological services, proposed by Midland Wellness for Medical Rehabilitation in a plan dated March 29, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to payment of an IRB from October 31, 2022, to date and ongoing.
4The applicant is not entitled to the treatment plans in dispute.
5The respondent is not liable to pay an award under s. 10 of Reg. 664.
6As there are no overdue payment of benefits, the applicant is not entitled to interest.
ANALYSIS
The applicant is not entitled to an income replacement benefit
7The applicant is not entitled to payment of an IRB from October 31, 2022, to date and ongoing.
Pre-104-Week IRB
8To 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.
9The accident was on January 16, 2022; the pre-104-week period in question runs from January 16, 2022, to January 15, 2024, and the post-104-week period would commence on January 16, 2024.
10The applicant submits that she suffers a substantial and ultimately a complete inability to perform the essential tasks of her employment as a bilingual customer service representative. She relies on the assessment report by and testimony of Dr. Daniel Yim, general physician, the assessment report by Dr. Leon Steiner, psychologist, clinical notes and records of the family physician, Dr. Mobo, as well as her own testimony.
11The respondent submits that the applicant does not suffer a substantial inability to perform the essential tasks of her employment. It relies on the assessment report by and testimony of Dr. Riaz Moola, family medicine specialist, the assessment report by and testimony of Ms. Zubina Ladak, psychologist, the clinical notes and records of Dr. Mobo, and various correspondence from the respondent to the applicant.
12The applicant was employed as a bilingual customer service representative by Echo Logistics from December 16, 2021, until the accident on January 15, 2022. According to the applicant’s testimony the essential duties related to this position required working in a sedentary position at a desk, telephone answer and response, computer fingering work, dealing with the public and some minor lifting and carrying. I accept that the applicant’s testimony regarding the essential tasks of her employment.
13For the reasons that follow, I find that the applicant has not met her onus, on a balance of probabilities, in proving that she has a substantial inability to perform the essential tasks of her employment.
14I do not accept Dr. Yim’s diagnosis. During testimony Dr. Yim outlined that he has a special interest in psychiatry and pain management; however, Dr. Yim conceded that he does not have any certificates or credentials in these areas of medicine. Because Dr. Yim’s opinion is not based on education or training, I cannot accept his diagnosis as an expert opinion.
15I find that Dr. Yim’s report of December 20, 2023, is of limited probative value. Dr. Yim did not review any medical evidence such as treatment plans, expert reports or clinical notes and records. Dr. Yim relied solely on the applicant’s self-reports to conclude the applicant suffers from chronic pain, myofascial pain syndrome of the cervical, thoracic, and lumbar spine, post-traumatic headaches, post-traumatic sleep disturbance, general anxiety, and specific phobia – motor vehicle. Without an awareness of the applicant’s medical history and past treatment, apart from the applicant’s self-reports and presentation the day of the assessment, the assessor, in my opinion, is deprived of a comprehensive picture of the applicant’s symptoms and function.
16I find Dr. Yim’s addendum report has no weight. In his one-page addendum report of December 16, 2024, Dr. Yim does not provide a clear outline of the essential tasks of the applicant’s employment, but concludes she suffers both a substantial and complete inability to perform the essential tasks of her employment. Dr. Yim reaches this conclusion based solely on his examination from a year earlier in 2023. The combination of not articulating who the employment was with, not outlining the essential tasks of that employment and not examining the applicant more than a year after his original findings leaves me with no confidence in the opinion.
17Dr. Steiner, psychologist, assessed the applicant on February 23, 2023, utilizing a combination of seven psychometric tests and a clinical interview. Dr. Steiner concludes that the applicant, despite treatment and medication, has not been capable of performing caregiving, household and daily functions and suffers a substantial inability to perform essential work-related tasks. I give the report by Dr. Steiner of March 2, 2023 slightly diminished weight because he did not review any treatment or assessment records of any other professional. Without an awareness of the applicant’s medical history and past treatment, apart from the applicant’s self-reports and presentation the day of the assessment, the assessor, in my opinion, is deprived of a comprehensive picture of the applicant’s symptoms and function. Dr. Steiner outlines, in a basic sense, that the applicant worked as a bilingual customer service representative at the time of the accident, but he does not outline who the employer is and does not enumerate the essential tasks of the role. Dr. Steiner opines that the applicant suffers a substantial inability to perform work-related tasks at the level she normally performed prior to the accident, which in my mind is not the same as a substantial inability to perform the essential tasks of her role. Dr. Steiner does not outline a baseline of work performance prior to the accident so that a comparison may be drawn; it is unclear from the report and conclusion of Dr. Steiner what the essential tasks of employment are, and Dr. Steiner does not address the tasks the applicant is unable to perform and to what extent she is unable to perform them.
18The clinical notes and records of Dr. Mobo do not mention any car accident or accident-related impairments until March 13, 2023. For instance, the applicant’s first visit following the subject accident occurred 22 days later on February 7, 2022. The subject accident is not referenced, and the doctor notes the applicant “looks well”. The applicant then attends Dr. Mobo on February 17, 2022, March 5, 2022, and March 24, 2022, where there are no mentions of the subject accident. These notes also generally reflect the applicant is doing well, and the visits are largely due to her pregnancy. On March 13, 2023, the applicant reports she is doing “good”, and she notes previous issues with anxiety due to an accident. This note is the first mention of the subject accident to Dr. Mobo. The lack of reference to the subject accident by the applicant with her family physician for more than a year following the accident, with multiple opportunities to do so, causes me to question the veracity of the applicant’s complaints.
19The applicant testified that she can’t sit for long, has a sore neck, back and feet along with headaches and an inability to focus which keep her from returning to work.
20The applicant submits that she is substantially unable to perform the essential tasks of her employment, and yet testified that she can read, write, use a cell phone, use a computer, continues to be bilingual and handles her personal finances, which taken together seem to be largely similar to the essential tasks of her employment.
21Finally, in contrast to the applicant’s expert evidence, the respondent’s assessors, Dr. Moola and Ms. Ladak, provide an outline of the applicant’s employment, the essential tasks of that employment and opine that the applicant does not suffer a substantial inability to perform the essential tasks of her employment, as a result of the subject accident. Going further, Ms. Ladak submitted during testimony that the psychological sequalae the applicant is suffering are not functionally limiting, and that she thought attending work would be therapeutic for the applicant.I accept these opinions and evidence because the applicant has not submitted sufficient evidence to refute them.
22I find that the applicant has not met her onus, on a balance of probabilities, in proving that she has a substantial inability to perform the essential tasks of her employment.
Post-104-Week IRB
23To receive payment for a post-104-week IRB under s. 6 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.
24The applicant has not demonstrated that she suffers a substantial inability to perform the essential tasks of her pre-accident employment. Therefore, I am further satisfied that the applicant’s evidence is not sufficient to demonstrate, on a balance of probabilities, that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience.
The applicant is not entitled to the treatment plans in dispute
25I find that the applicant has not met her onus, on a balance of probabilities, in proving that the five disputed treatment plans are reasonable and necessary.
26The applicant seeks entitlement to four physiotherapy services treatment plans submitted by North Toronto Rehabilitation & Physiotherapy Clinic and one psychological services treatment plan submitted by Midland Wellness.
27To 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 because 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.
28The applicant submits that the disputed treatment plans are reasonable and necessary for her to recover from her accident-related injuries and relies on her testimony, along with the treatment records of North Toronto Physiotherapy and Rehabilitation Clinic, Life Mark Physiotherapy, Birchmount Health and Wellness and Midland Health and Wellness.
29The respondent submits that the plans physical treatments are not reasonable and necessary, and that the psychological treatment plan has been partially approved with no evidence that the approved portion has been utilized and relies on the assessment report of Dr. Moola and the Schedule.
30There are no physical treatment plans in evidence. The applicant testified that physiotherapy treatments were helping with pain management and recovery and provided temporary relief.
31The treatment records of North Toronto Physiotherapy and Rehabilitation Clinic, Life Mark Physiotherapy, Birchmount Health and Wellness and Midland Health and Wellness all relay the applicant’s self-reports of pain in the neck, back and waist, with references of emphasis to the left side of her body. These treatment records are based on the applicant’s self-reports.
32In contrast, the respondent’s evidence from Dr. Moola’s physical assessment of September 8, 2022, is that the applicant showed no signs of physical impairment. The applicant’s family physician CNRs during the time of these treatment plans make no reference to accident-related impairments. I accept this evidence because the applicant has not submitted sufficient evidence to refute it.
33There is agreement amongst mental health assessors that the applicant would benefit from mental health therapy, and the respondent has partially approved the psychological services treatment plan in dispute.
34There is no mental health treatment plan in evidence.
35The applicant did not testify directly regarding the need for mental health therapy.
36In contrast, the respondent’s evidence is that the subject treatment plan has been partially approved following the psychological assessment by Dr. Steiner; and that the denied portion is in relation to the hourly rate for a psychotherapist’s services as opposed to a psychologist. I accept this evidence because the applicant has not submitted sufficient evidence to refute them.
Interest
37As there are no delayed payments, interest does not apply.
Award
38The 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.
39The 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. With no benefits owing to the applicant, there is no basis for an award.
ORDER
40The applicant is not entitled to payment of an IRB from October 31, 2022, to date and ongoing.
41The applicant is not entitled to the treatment plans in dispute.
42The respondent is not liable to pay an award under s. 10 of Reg. 664.
43As there are no overdue payment of benefits, the applicant is not entitled to interest.
44The application is dismissed.
Released: April 10, 2025
Timothy Porter
Adjudicator