Licence Appeal Tribunal File Number: 23-008556/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:
Carlo Alfaro
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Crystal Law, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Carlo Alfaro, the applicant, was involved in an automobile accident on December 7, 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, Security National Insurance Company, 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 in the amount of $400.00 per week from December 7, 2022 to ongoing?
ii. Is the applicant entitled to $1,303.86 for devices, proposed by Safe Space Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated October 27, 2023?
iii. Is the applicant entitled to $2,224.71 for nutritional counseling, proposed by E Clinic United in a plan dated October 23, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit (“IRB”) or the two treatment plans in dispute. The respondent is not liable to pay an award. The applicant is not entitled to interest.
PROCEDURAL ISSUES
4In his reply submissions, the applicant raised several procedural objections to the respondent’s submissions and document brief. The applicant submitted that they were not in accordance with the formatting and reference requirements of the Case Conference Report and Order (“CCRO”) in this matter. The respondent’s document brief was not consecutively page numbered and its submissions did not refer to evidence by both tab and page number as the CCRO ordered. The applicant therefore submitted that the Tribunal should not consider paragraphs 17 to 20 (employment file) or 36 to 54 (treatment plans) of the respondent’s submissions, or evidence referenced at Tab P (email correspondence regarding LTD/STD).
5The CCRO provides that the hearing adjudicator has discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing commitments.
6I acknowledge the applicant’s objections but find that the respondent’s submissions were in an acceptable format and length and provided references to its book of documents. The respondent’s document brief may not have been consecutively numbered but it was tabbed and bookmarked in a fashion that permitted me to easily navigate to the documents referenced.
7I deny the applicant’s request that I not consider paragraphs 17 to 20 and 36-54 of the respondent’s submissions, and evidence at Tab P, because the absence of page number references is not a sufficient reason to disregard a party’s submission. I see no prejudice to the applicant.
8I find that submissions in a written hearing are essential to an adjudicator’s consideration of documentary evidence. They, like submissions in an oral hearing, direct me to the relevant documents and things that support and underpin a fact or detail that is argued before the Tribunal. In this case, I find that a technical or format issue, such as the lack of consecutive page numbering, did not result in any prejudice and does not prevent the Tribunal from considering the merits of the respondent’s submissions.
ANALYSIS
Income Replacement Benefit
9The applicant seeks $400.00 per week in IRBs for the period from March 18, 2023 to September 5, 2023.
10I find he is not entitled to IRBs because I am not convinced on a balance of probabilities that he suffered a substantial inability to continue performing the essential tasks of his employment. In fact, he continued working, full-time, for three months after the accident, at which point his employment ended due to not meeting performance standards.
11To 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 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.
12The applicant was working as a packager at Amazon at the time of the accident. He acknowledges returning to work after the accident for “financial reasons”, but he submits he experienced pain with repetitive tasks, sustaining postures, working overhead, bending, lifting and carrying. He submits that due to not being able to keep up with the physical demands of the job, he was terminated on March 18, 2023.
13The applicant regained employment on September 5, 2023 in a less physically-demanding occupation.
14The applicant submits that the legal (medical) test for entitlement to an IRB had been met, based on the letter he received from the respondent May 9, 2023, which states, “We have determined that you may be eligible to receive the IRB as you are unable to return to work since the accident”.
15The applicant submits that, “At no point since he submitted his claim for IRBs did the respondent indicate he did not meet the medical test for entitlement”. The applicant submits that the IRB was never formally denied on the basis of him being medically disentitled, i.e. that he was substantially able to perform the essential tasks of his employment. It submits that raising the medical test now, as a reason to deny the IRB, constitutes trial by ambush.
16The respondent submits that the applicant is not entitled to IRBs because he returned to work immediately after the accident, did not miss a shift until he was terminated on March 18, 2023, and has not demonstrated that his termination was associated with any ongoing pain or physical limitations. It submits there is no evidence the applicant’s termination was due to accident-related injuries. Rather, it submits, the employment record points to his termination because of poor productivity performance that began nine months before the accident.
17The respondent submits the applicant sought work after leaving Amazon in March 2023 and referred me to a psychological assessment report of April 22, 2023 by Kanwaljit Kaur, psychotherapist, in which the applicant stated, “he is looking for a full-time job but currently there are not many available. He is presently working at a part-time job, …”.
The employment records
18Based on his Record of Employment, I find the applicant consistently worked full-time hours from the date of the accident to the termination date, averaging 38.7 hours per week from December 3, 2022 to January 28, 2023, and 37.0 hours per week from February 4, 2023 to March 18, 2023.
19The employment file reveals that the applicant received three written Supportive Feedback Document Productivity (“SFDP”) reports for not meeting productivity expectations between March 16, 2022 and the date of the accident, and three thereafter through to his termination on March 18, 2023. The SFDP reports note that if an associate (employee) receives a total of six written warnings in a rolling 12 months, their employment will end.
20Amazon submitted an OCF-2 dated February 7, 2023 detailing the applicant’s employment details such as gross income the previous 52 weeks, supplementary collateral benefits from Canada Life, job title, and date of employment. The applicant’s job description is described as “picking multiple items from different totes that are then packed into one order.” The physical demands summary attached the OCF-2 describes, in detail, what the applicant must physically be able to perform in the job. For example, lifting above the shoulder to retrieve boxes from upper levels, weighing under 1 kg, and standing at a pack station throughout the shift with a sustained duration of 83 seconds.
Medical records
21The only medical documentation the applicant referred me to in support of IRB entitlement was an OCF-3 disability certificate dated December 21, 2022 which was completed by Dr. Ayden Banibashar, chiropractor, of Mackenzie Medical Rehabilitation Centre. The respondent acknowledges receiving it April 6, 2023.
22The OCF-3 reported that the applicant was substantially unable to perform the essential tasks of his employment, that he could return to work on modified hours, and the disability was expected to last 9 to 12 weeks. The OCF-3 also reported that the applicant suffers a complete inability to carry on a normal life and that his accident injuries continuously prevent him from engaging in recreational activities, hobbies and house chores such as cooking, cleaning, laundry and caregiving.
23The applicant’s book of documents includes a s. 25 report by Dr. Tajedin Getahun, orthopaedic surgeon, and clinical notes and records of Dr. Patrick Yoo of Progress Centre Medical, but the applicant did not make submissions on these documents regarding IRB entitlement.
24After the respondent advised (May 9, 2023) that the applicant may be eligible for IRBs, the correspondence between the parties reveals that they were engaged in a back and forth over the quantum of the IRB. The respondent issued the applicant numerous requests for further information on the IRB claim, all of them concerning the quantum of the IRB, for example: OCF-2 Employer’s Confirmation Forms (confirming employee earnings, benefits, employment details and employer information), confirmation of collateral benefits, paystubs, and Service Canada Records of Employment (“ROE”).
25I find, on a balance of probabilities, that the applicant is not entitled to IRBs because he has not provided an evidentiary basis for satisfying the legal test in section 5(1) of the Schedule, that the accident resulted in him suffering a substantial inability to perform the essential tasks of his employment, which is his burden on this issue.
26There is no dispute that the applicant returned to work immediately after the accident. The pivotal issue is whether the applicant was terminated from his pre-injury employment on March 18, 2023 as result a substantial inability to perform the essential tasks of his employment.
27The applicant claims that his accident injuries were preventing him from keeping up with the physical demands of the job and that is why Amazon released him, but he has not directed me to any evidence that would support that assertion.
28Rather, the applicant’s submissions generally present arguments in support of the IRB quantum (the absence of LTD/STD benefits), and complaints about how the respondent adjusted the claim. I find the arguments about quantum and complaints about the respondent’s interactions on this claim overlook the applicant’s onus to prove that he meets the threshold for IRB entitlement in the Schedule. The only evidence of his accident injuries supporting a substantial inability to perform the job’s essential tasks, that he directed me to, is the OCF-3.
29I give little weight to the OCF-3 because it reported the applicant also suffered a complete inability to carry on a normal life. If that were true, it is inconsistent with the fact that he worked full-time hours for three months after the accident. It is difficult to lend the OCF-3 greater weight because of this contradiction.
30As noted above, the physical demands summary of the OCF-2 outlines the physical demands of the applicant’s essential employment tasks. Although the applicant referred me to the OCF-2 document, he made no submissions on the extent of the applicant’s ability to perform those essential tasks of his employment, which is his burden in this case.
31I find that the applicant has not proven he is entitled to IRBs. He has not directed me to any medical evidence beyond the OCF-3 that speaks to the severity of his injuries or to what extent he is unable to perform certain tasks of employment.
32I am not persuaded by the applicant’s submission that he was taken by surprise by the respondent now claiming he was not medically entitled to IRBs. The issue in the CCRO is whether the applicant is entitled to IRBs which is determined on the basis of the test entitlement to an IRB, as set out in s. 5 of the Schedule.
33I find the employment records, which, as the respondent submits, suggest the applicant’s termination was due to poor productivity performance, adds further doubt to the assertion that the applicant was released as a result of his accident injuries.
34I find on a balance of probabilities that the applicant did not meet his onus in proving entitlement to IRBs.
Issue 2: $1,303.86 for devices
35I find the applicant is not entitled to the benefits in this proposed treatment plan.
36To 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.
37The applicant submits the respondent failed to meet its obligations under section 38 of the Schedule, which I have addressed below, and if the Tribunal finds the respondent did comply with s. 38, that the treatment plan is reasonable and necessary.
Reasonable and necessary
38The applicant submitted the OCF-18 for these devices in a treatment plan by Dan Shlepakov, chiropractor at Safe Space Rehabilitation Centre, on October 24, 2023. The devices it recommends, including a body pillow, Reacher, anti-fatigue mat, and hot and gold gel packs, are taken from the report of an attendant care assessment by Arash Sasani, occupational therapist, conducted on October 20, 2023. The OCF-18 incorporated Sasani’s recommendations for equipment to optimize the applicant’s functional independence, listed on page 15 of the report:
i. Hot/cold gel packs(2x)
ii. Cervical pillow
iii. Body pillow
iv. Rigid back support
v. Anti-fatigue mat
vi. Reacher
vii. Long-handled tub scrubber
viii. Long-handed toilet scrubber
ix. Long-handled duster
x. Tens machine
39Sasani reported that the applicant not only suffers a substantial inability to perform the essential tasks of his employment, but also stated the applicant suffers a complete inability to carry on a normal life.
40The applicant notes the goals of the OCF-18 to reduce pain, increase strength, increase range of motion, and return to the activities of normal living and pre-accident work activities are all valid.
41The respondent denied the OCF-18 on the strength of a s. 44 insurer’s examination report of Dr. Chris Aldridge, general practitioner, dated July 17, 2023, which determined the applicant’s physical injuries from the accident to be minor in nature, i.e. meeting the definition of a minor injury pursuant to s. 3 of the Schedule.
42I find the applicant has not demonstrated that the proposed treatment plan is reasonable and necessary.
43The applicant directs me to Sasani’s attendant care assessment report in support of the claim. I give this assessment report no weight because it reports the applicant suffered a complete inability to carry on a normal life. I find that this is inconsistent with the preponderance of evidence before me which, as set out above, shows the applicant continued to work at the same number of hours, post-accident, that he worked pre-accident, and sought work after being released from Amazon. The employment record defies any claim that he suffered a complete inability to carry on a normal life.
44Further, the applicant has not directed me to any other corroborating medical evidence in support of this treatment plan.
45With no other supporting medical evidence beyond the Sasani report, I find on a balance of probabilities the applicant has not met his onus to demonstrate the reasonableness and necessity of this claim.
Issue 3: $2,224.71, nutritional counselling
46I find the applicant is not entitled to this treatment plan because he has not demonstrated it is reasonable and necessary.
47The applicant submits the respondent failed to meet its obligations under section 38 of the Schedule, which I have addressed below, and if the Tribunal finds the respondent did comply with s. 38, that the treatment plan is reasonable and necessary.
Reasonable and necessary
48The treatment plan was proposed by Keon Kirlew, chiropractor at E Clinic United Healing, on August 22, 2023. Anna Maria Porretta, registered dietician, recommended the nutritional counselling, based on her assessment of the applicant on August 14, 2023, reported on August 21, 2023. She reported that the applicant gained 6.8 kg due to inactivity following the accident. The nutritional strategies and education/counselling outlined in the plan were to help support and improve the applicant’s energy levels, mood, cognitive functioning, digestions and overall health and recovery.
49Porretta’s nutritional assessment report is detailed and persuasive. For example, she described in detail how altering the applicant’s diet would help improve sleep, emotional contentment, and aid his recovery from physical and psychological injuries.
50The report describes how the applicant’s physical pain from the accident led to less physical activity (walking), and this has resulted in declining endurance, strength, energy levels and motivation. She reported that his physical impairments were also resulting in a bigger and more irregular appetite. The nutrition counselling is directed at addressing his diet to help him recover from the accident injuries.
51Porretta’s report provides ample detail on how the goals of the treatment plan would be achieved.
52The applicant relies on the Porretta nutritional assessment report in seeking entitlement to this disputed treatment plan in the amount of $2,224.71.
53The respondent submits the applicant did not meet his burden in proving that the nutritional counselling and supplements proposed are reasonable and necessary. It denied the OCF-18 on November 3, 2023 and notified the applicant it would undertake an assessment to determine if it was reasonable and necessary. Dr. Aldridge conducted a paper review of the treatment plan and reported back to the insurer, on January 8, 2024, that the plan was not reasonable and necessary.
54The basis of Aldridge’s conclusion was the absence of objective musculoskeletal physical injuries attributable to the accident. In other words, the extent of the applicant’s physical injuries from the accident did not necessitate a dietary plan and counselling. As noted above, Dr. Aldridge had previously concluded the physical applicant’s injuries were minor.
55I find the applicant is not entitled to this treatment plan.
56Although the Porretta assessment is detailed and describes how the goals of the treatment plan would be met, I give it less weight than the insurer examination assessment by Dr. Aldridge.
57I give Porretta’s report less weight because its recommendations are based on the pain symptoms and experience the applicant himself described.
58The applicant did not refer me to any other objective medical evidence that would corroborate the pain symptoms described in Porretta’s report. The applicant’s self-reports are not without evidentiary value, but when they are not corroborated by qualified, independent medical evidence, I give them less weight.
59I give weight to the Dr. Aldridge’s insurer examination report of July 17, 2023, which concluded the applicant’s physical injuries were minor, because he is a physician, he conducted an in-person assessment, and completed a documentation review. His finding was reinforced by the paper review he undertook in respect to this treatment plan.
60I find on a balance of probabilities that the applicant is not entitled to this treatment plan because Porretta’s assessment is founded on the applicant’s self-reports of pain symptoms, the applicant has not directed me to any objective medical evidence to corroborate the pain symptoms described, and Dr. Aldridge’s assessments carry greater weight in documenting the extent of the applicant’s injuries.
Section 38
61I find that the denials of the treatment plans were compliant with section 38(8) of the Schedule.
62Section 38(8) stipulates that an insurer must notify an insured person, within 10 business days after it receives a treatment plan, of the goods and services in the plan it agrees to pay for, and not pay for. In the case of those it disagrees to pay for, the insurer must provide the insured party with the medical and all of the other reasons why it considers the proposed services to not be reasonable and necessary.
63Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38 (8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38 (8) and it is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline (“MIG”) applies.
64While not binding on me, the Tribunal has found in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 29373 (ON LAT) (“TF v. Peel”) that as part of the “medical and all the other reasons” required in a denial letter, the insurer should engage specific details about the insured’s medical condition that forms the basis of its decision, and it must do so in a way that would allow an unsophisticated person to understand the reasons for the denial so as to make an informed decision. TF v. Peel provides guidance on the question of whether a denial notice meets an insurer’s obligations in s. 38(8). A compliant denial letter ought to include a principled rationale based fairly on an insured person’s file.
65In relation to the two disputed treatment plans, the applicant submits that the respondent failed to provide notice pursuant to section 38(8) and is therefore obliged to pay the full amount of the treatment plans pursuant to s. 38(11). The applicant referred me to the Tribunal decision in Nwaogwugwu & Aviva, 2023 CanLII 113750 (ON LAT) (“Nwaogwugwu”) in which the adjudicator referred to T.F. v. Peel and noted that the insurer should explain what the insured person’s medical conditions are, including the details of the insured’s condition forming the basis for the refusal. The applicant cited an excerpt from Nwaogwugwu at paragraph 14, from the Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, that the use of “boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute no reasons at all.”
66Although the applicant referred me to the case law above, he did not provide any explanation as to how or why he believed the respondent’s notices under section 38 were deficient. He simply stated, in relation to s. 38(8), that “no such notice was provided”. I am left wondering what his reasons are for making this assertion.
67The respondent submits that it complied with the procedural requirements of s. 38 and that the medical and/or other reasons for the denials were provided in its notices. A review of the denial letters reveals the following:
i. The OCF-18 for $1,303.86 dated October 24, 2023 is noted as being received by the respondent on October 27, 2023. The respondent sent the denial letter on November 9, 2023, nine business days later.
ii. The OCF-18 for $2,224.71 dated August 22, 2023 is noted as being received by the respondent October 23, 2023. The respondent sent the denial letter on November 3, 2023, nine business days later.
68I find the respondent satisfied its obligations to section 38(8) in the denial letters because they were issued within 10 business days following the receipt of the treatment plan proposals and included medical and other reasons for the denial. The denial letters describe, in unsophisticated language, the basis of the respondent’s denial. They refer to Dr. Aldridge’s insurer examination reports of the applicant’s physical injuries being minor and the absence of other medical documents in the applicant’s file that would support the OCF-18 claims. The denial letters also notified the applicant that further insurer examinations are being arranged for the purpose of gathering more medical information in relation to the claims.
69The applicant has not refuted the dates the treatment plans were submitted, nor the dates the notices were issued, and has not provided any reasons to support his belief that the notices did not comply with section 38.
70I find the notices sent to the applicant in respect of the treatment plans in issues 2 and 3 were compliant with s. 38 of the Schedule.
Interest
71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are overdue, no interest is owed to the applicant.
Award
72The 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.
73As no payment of benefits was unreasonably withheld or delayed, the applicant is not entitled to an award under s. 10 of Reg. 664.
ORDER
74In consideration of the appeal in this matter, I order the following:
i. The applicant is not entitled to an income replacement benefit;
ii. The applicant is not entitled to $1,303.86 for devices;
iii. The applicant is not entitled to $2,224.71 for nutritional counselling;
iv. The respondent is not liable to pay an award under s. 10; and
v. The applicant is not entitled to interest.
Released: May 9, 2025
Bruce Stanton
Adjudicator