Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-002855/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:
Bradley Kent Alexander
Applicant
and
CAA Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Bradley Kent Alexander, Applicant
For the Respondent:
Jeffrey Pasternak, Counsel
HEARD: by Videoconference:
February 11, 2025
OVERVIEW
1Bradley Kent Alexander, (the “applicant”) was involved in an automobile accident on February 6, 2020, 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 CAA Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing for a psychological assessment in the amount of $2,200.00 proposed by Excel Medical Diagnostics Inc because the applicant failed to dispute their denial within the 2-year limitation period?
SUBSTANTIVE ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 1, 2020, to date and ongoing?
ii. Is the applicant entitled to $14,255.19 for chronic pain treatment, proposed by Excel Medical Diagnostics Inc. in a treatment plan/OCF-18 (“plan”) submitted October 14, 2021, and denied March 17, 2022?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Excel Medical Diagnostics Inc. in a plan submitted June 9, 2020, and denied August 17, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Preliminary Issue: I find that the applicant is barred from proceeding to a hearing for a psychological assessment in the amount of $2,200.00 proposed by Excel Medical Diagnostics Inc. in accordance with s.56 of the Schedule.
5Substantive Issues: The applicant is not entitled to an income replacement benefit in the amount of $400 per week from November 1, 2020, and ongoing.
6The applicant is not entitled to $14,255.19 for chronic pain treatment, proposed by Excel Medical Diagnostics Inc. in a treatment plan/OCF-18 dated October 14, 2021.
7Since no benefits are owing, interest is not owing.
PROCEDURAL ISSUES
8On November 21, 2024, the applicant’s counsel withdrew from acting as the representative of record for the applicant in accordance with Licence Appeal Tribunal Rules, 2023 Rule 24.4. The applicant was unable to retain new counsel prior to the scheduled hearing.
9At the outset of the hearing, the applicant advised that he would be acting as a self represented individual as he was not able to retain counsel in the approximately three months since his counsel removed themselves as his representative. The applicant did not request an adjournment and as such I proceeded with the hearing. I allowed for numerous breaks and assisted the applicant by giving him detailed instructions on how we would proceed through the hearing, which he was able to follow. At the end of the hearing, the applicant advised me that he believed that he had a fair hearing.
10The applicant did not file a document brief with the Tribunal and relied solely on his oral testimony.
11This matter was scheduled for a two-day videoconference hearing, however on consent of the parties the hearing was completed on the first day.
PRELIMINARY ISSUE ANALYSIS
12Section 56 of the Schedule provides a time limit for proceedings and states that an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
13In this case, the respondent denied the applicant’s treatment plan for a psychological assessment on August 17, 2020. I was not pointed to evidence from the applicant that he had disputed the respondent’s denial letter within two years of the denial.
14The onus to prove entitlement to a benefit lies with the applicant. In this case the applicant failed to dispute his entitlement to the psychological assessment until approximately three and a half years after the respondent’s denial.
15Accordingly, I find that the applicant is statute-barred from proceeding to a hearing for the psychological assessment plan in the amount of $2,200.00 proposed by Excel Medical Diagnostics Inc. because the applicant failed to dispute the respondent’s refusal to pay for the treatment plan in accordance with s.56 of the Schedule.
SUBSTANTIVE ISSUE ANALYSIS
The applicant is not entitled to a pre-104 IRB
16The applicant is not entitled to a pre-104-week IRB in the amount of $400.00 per week from November 1, 2020, to October 31, 2022.
17To 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 his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
18In this matter, the applicant is claiming entitlement to an IRB in the amount of $400.00 per week from November 1, 2020, and ongoing. I will first consider entitlement for the pre-104 period in dispute to be from November 1, 2020, to October 31, 2022.
19The applicant testified that as a result of the accident he can no longer work as a produce delivery driver. He testified that he has a fused disk in his lower back as a result of the accident that renders him unable to lift over ten pounds of weight. He testified that his pre-accident employment involved delivering fresh produce to various grocery stores, a job that required heavy lifting and bending which he is no longer able to do because of the injuries sustained in the accident.
20The respondent argues that the applicant returned to work the day after the accident and continued to work until October 31, 2020. It argues that the applicant received CERB benefits in October 2020 which is supported by documentation that the applicant pledged that he was ready, willing, and able to work.
21The respondent further argues that the applicant has not sustained a fused disk in his lower back but rather the applicant has sciatica, and this was not reported until approximately two years after the accident. The respondent relies on the multidisciplinary examinations and reports of Dr. McLachlan, neurologist, dated January 17, 2022, a functional abilities evaluation examination by Mr. Hartog, kinesiologist, dated January 10, 2022, and a musculoskeletal examination conducted by Dr. Bansal, general practitioner, dated September 17, 2021.
22On June 4, 2021, the applicant submitted an OCF-3 (disability form) to the respondent completed by Troy Seely, a physiotherapist at ProFunction Health Care Team, indicating that the applicant sustained injuries which render him substantially unable to perform the essential tasks of his employment due to the motor vehicle accident. However, I find the OCF-2 completed by the applicant’s employer stated that the applicant has not been to work since October 31, 2020. This is approximately eight months after the motor vehicle accident.
23On July 13, 2021, the respondent denied the applicant’s claim to an IRB because of the amount of time that had elapsed since the accident and the lack of information surrounding the applicant’s employment. It advised the applicant that he would be required to attend insurer’s examinations in accordance with s.36(3)(b) and s. 44 of the Schedule.
24The applicant testified that he returned to work the day after the accident and continued to work until he was laid off from his employer because he could no longer perform his pre-accident duties as a produce delivery driver and that subsequently he received CERB benefits due to the Covid-19 pandemic.
25As the applicant has demonstrated that he returned to his pre-accident employment for approximately eight months after the accident, I find that the applicant can perform the essential tasks of his employment as a produce delivery driver.
26The applicant testified that he has a fused disk in his lower back as a result of the accident and that he believes that his family physician has lost many of his medical records and therefore he is unable to corroborate his claim to a fused disk in his lower back as a result of the accident.
27I find that the medical evidence does not support the applicant’s position that his lower back condition is accident related. Specifically, the applicant’s evidence is not supported by the clinical notes and records of his own physician Dr. Azad, which were produced by the respondent. On August 18, 2022, approximately one and a half years post accident, the applicant complained to Dr. Azad of lower back pain that radiated thru his left hip and that these symptoms had been present for approximately six weeks and that he had just woke up with the symptomology one morning.
28Further, on August 22, 2022, the applicant attended Clear Medical Imagining for an X-ray for further investigation of his back pain. The findings of the X-ray show no acute fracture or dislocation and that the applicant has mild to moderate circumferential left hip joint degenerative changes.
29Additionally, the respondent’s assessors point to other injuries that the applicant sustained as a result of the accident such as: a possible mild concussion, soft tissue injuries to the applicant’s neck, shoulder and back. The applicant did not testify that he sustained a concussion or soft tissue injuries to his neck and shoulder as a result of the accident.
30When addressing the applicant’s possible mild concussion and soft tissue injuries as a result of the accident, neurologist Dr. McLachlan opines in his report that even if the applicant did suffer a minor head injury from the accident, there are no neurological injuries as a result. Dr. Bansal opined that from a musculoskeletal perspective the applicant has no valid signs of injury and that the applicant had sustained uncomplicated self-resolving soft tissue type injuries. Further the applicant was not able to complete the Functional Abilities Evaluation (“FAE”) because he terminated or declined all testing within the evaluation conducted by physiotherapist Hartog, therefore rendering Mr. Hartog’s FAE invalid.
31I preferred the multidisciplinary approach taken by the respondent and accept the medical evidence of Dr. McLachlan and Dr. Bansal; therefore, I accept the opinions and conclusions of their respective reports that the applicant is able to return to his pre-accident employment from their areas of medical expertise.
32Given that the applicant did not provide me with any medical documentation and relied solely on his testimony to support his application, I place greater weight on the report and findings of Dr. Bansal and Dr. McLachlan. Accordingly, I find that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident.
33The applicant has not met his onus to prove that he is entitled to a pre-104 IRB. Therefore, on a balance of probabilities, I find that the applicant is not entitled to an IRB in the amount of $400.00 per month from November 1, 2020, to October 31, 2022.
The applicant is not entitled to a post-104 IRB
34The applicant is not entitled to a post-104 IRB in the amount of $400.00 per week for the period from November 1, 2022, and ongoing.
35To receive payment for a 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 experience.
36As set out above, the applicant testified that he is unable to work in any capacity due to the fused disk in his lower back. He further testified that approximately one year ago he suffered a stroke due to the stress from the unresolved fused disk in his back and because of the financial burden he has suffered by not receiving an IRB from the respondent.
37The respondent submits that the applicant’s unresolved back injuries are not due to the subject accident and that the applicant has not sustained a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
38The applicant’s claim for a post-104 IRB is due to his continued lower back pain and more recently a stroke. As I have found the applicant has not met his onus to establish entitlement to a pre-104 IRB, I also find that he has not met his onus under the higher threshold for a post-104 IRB.
39Specifically, I find that the evidence before me does not support a conclusion that the applicant has an accident-related medical condition that rendered him completely unable to engage in any employment of self-employment for which he is reasonably suitable.
40Although the applicant has testified to his inability to work due to the accident, I find this testimony is not supported by the medical evidence before me, which does not relate the applicant’s stroke or low back pain as a result of the motor vehicle accident. Further, the applicant’s testimony did not identify why as a result of the accident he has suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. Therefore, I find that the applicant is not entitled to a post-104 IRB.
41The applicant has not met his onus to prove entitlement to a post-104 IRB from November 1, 2022, and ongoing.
42Accordingly, I find that on a balance of probabilities the applicant is not entitled to a post-104 IRB.
Chronic Pain Treatments
43I find that the applicant is not entitled to $14,255.19 for chronic pain treatments proposed by Excel Medical Diagnostics Inc.
44To receive payment for a treatment and assessment plan under sections 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.
45In a letter dated November 10, 2021, the respondent denied the applicant’s chronic pain treatment plan based on the medical documentation on file and the amount of time that has lapsed since the accident. Further they denied the treatment plan based on receiving a completed insurer’s examination.
46The respondent relied on the report of Dr. Bansal dated February 23, 2022, which concluded that based on the applicant’s in person assessment of September 17, 2021 and the file documentation that from a musculoskeletal perspective the applicant had sustained uncomplicated self-resolving soft tissue type injuries involving his neck and back and that the chronic pain treatment plan in dispute was not reasonable or necessary because the applicant did not exhibit valid signs of musculoskeletal injury.
47The applicant did not provide any medical evidence or testimony to support his claim for the chronic pain treatments, therefore, I accept Dr. Bansal’s evidence that the chronic pain treatment plan in dispute is not reasonable or necessary.
48The applicant has not met his onus to prove entitlement to the disputed treatment plan. I find that the applicant is not entitled to the disputed chronic pain treatment plan.
INTEREST
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest is not owing.
ORDER
50It is ordered that:
i. The applicant is not entitled to an Income replacement benefit in the amount of $400.00 per week from November 1, 2020, and ongoing.
ii. The applicant is not entitled to $14,255.19 for chronic pain treatment.
iii. Since no benefits are owing, interest is not owing.
iv. The application is dismissed.
Released: April 4, 2025
John Mazzilli
Adjudicator