Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
Date: 2017-04-12
Tribunal File Number: 16-002750/AABS
Case Name: 16-002750 v The Dominion of Canada General Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D. D.
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Applicant: D.D. Representative for the Applicant: Rania Hafez Counsel for the Insurance Company: Dana R. Spadafina
Written Hearing: February 2, 2017
I. Overview:
The applicant, D.D., was injured in an automobile accident on June 22, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
The applicant made claims for non-earner benefits (“NEBs”), medical and rehabilitation benefits and attendant care benefits. The applicant mainly relies on the Disability Certificate dated July 7, 2014 by Dr. John Ikonomakis to support her claim for benefits.
The respondent denied the applicant the claimed benefits based on insurer’s examination reports from Dr. Todd Bentley, Physiatrist, Dr. Stephanie Wiesenthal, Psychiatrist, and Mr. Trevor Hanes, Occupational Therapist, which all conclude that the applicant’s injuries are minor and does not meet the test for non-earner benefits.
The onus is on the applicant based on a balance of probabilities to prove that she meets the test for non-earner benefits—a complete inability to carry on a normal life. Regarding the applicant’s claim for medical and rehabilitation benefits, she must show that her injuries are non-minor and that the claimed benefits are reasonable and necessary, as she has exhausted the Minor Injury Guideline limit of $3500.
I find that the applicant did not meet her evidentiary burden. She failed to provide any persuasive evidence that she meets the test for NEBs. As well, the applicant did not provide any compelling evidence to show that her injuries are non-minor requiring further treatment outside of the MIG limit. As such, the applicant was unable to persuade me that she is entitled to attendant care benefits and the medical and rehabilitation benefits.
II. Issues in dispute :
a) Issues raised in the appeal and confirmed in the Case Conference report and order dated December 5, 2016
- Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period January 22, 2015 to June 22, 2016?
- Are the applicant’s injuries minor?
- If not, Is the applicant entitled to the following medical benefits: a. $1,999.80 for a psychological assessment, recommended by Nor Med Assessment services, denied by the respondent on December 29, 2014? b. $2,160.51 for other assistive devices, recommended by Nor Med Assessment Services, denied by the respondent on October 10, 2014? c. $1,810.38 for an in home assessment, recommended by Nor Med Assessment Services, denied by the respondent on September 29, 2014? d. $1,293.80 for a functional abilities examination, recommended by Nor Med Assessment Services, denied by the respondent on November 17, 2014? e. $1,050.59 for self-directed exercises, recommended by Nor Med Assessment Services, denied by the respondent on November 17, 2015? f. $1,272.00 for chiropractic treatment, recommended by Gibson Wellness, denied by the respondent on October 23, 2014?
- Is the applicant entitled to attendant care benefits in the amount of $1,060.70 per month for the period October 11, 2015 to June 22, 2016?
- Is the applicant entitled to payment for the cost of an examination in the amount of $1,065.69 for an initial report, psychological, initial interview for psychological, pre-screen orthopedic, denied by the respondent on June 5, 2015?
- Is the applicant entitled to interest on any overdue payment of benefits?
b) Issues raised in the respondent’s submissions
- Is the respondent entitled to costs for this hearing?
III. Result:
I find on all evidence that:
- The applicant’s injuries are predominantly minor and she has exhausted funding in the MIG. Given that the applicant’s injuries are minor, she is not entitled to ACBs.
- The applicant has not met the test for NEBs.
- The respondent is not entitled to costs.
IV. Analysis:
a) Is the applicant entitled to NEBs for the period January 22, 2015 to June 22, 2016?
The test for entitlement to NEB is outlined in subsection 3(7) of the Schedule and states “a person suffers from a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
Heath v. Economical Mutual Automobile Insurance Co. 2009 ONCA 391 (“Heath”) has provided the most extensive examination and analysis of the proper approach to interpret the test for NEBs. I have relied on this decision to guide my analysis of the applicant’s entitlement in this matter.
Heath states that the “start point for the analysis whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.” (Heath, para 50)
The burden of proof is on the applicant to show me how her life was before and after the accident in order to determine whether she has a complete inability to carry on a normal life.
The applicant’s personal statement dated September 25, 2014 to the insurer provides information about the applicant’s life before and after the accident. I have summarized this information below:
| Life before the Accident | Life after the Accident |
|---|---|
| Visited friends | No longer visits friends |
| Mowed the lawn and did gardening | No longer mows the lawn or does gardening |
| Took care of her mother | No longer is able to take care of her mother |
| Walked independently | Walks with a cane |
| Cleaned and cooked | Receives assistance with cleaning and cooking |
| Suffered from anxiety and panic attacks | Increased anxiety and panic attacks |
While the personal statement provided information about the applicant’s activities, the applicant did not provide any information what activities were more important to her, which is part of the test in Heath for assessing an applicant’s entitlement to NEBs. Without this information, I am unable to put more weight on the activities that were more important to her.
Normally, applicants would provide me with such evidence as sworn affidavits outlining their lives before and after the accident, physician reports, clinical notes and records from various medical practitioners to demonstrate their entitlement to the benefits.
The applicant submitted the following evidence to support her claim for benefits:
- Disability Certificate completed by Dr. Ikonomakis, Chiropractor, dated July 7, 2014;
- Attendant care needs assessment completed by Ms. Beverly Neal dated October 11, 2014;
- Letter from Dr. Anjum Kamjee dated June 1, 2015;
- Letter from Dr. Kanjee dated July 15, 2015;
- Letter from Dr. T.O. Gyenes dated July 9, 2015;
- Ultra sound from Dr. Tal Gyenes of the kneed dated July 10, 2015;and
- Letter from Dr. Dilshad Kanji dated April 27, 2016.
In the applicant’s submissions, the applicant did not direct me to any evidence that she was relying on to support her claim for NEBs. In the absence of any direction from the applicant, I have concluded that the Disability Certificate is the most relevant document to determine the applicant’s entitlement to NEBs, as it indicated that she suffered a complete inability to carry on a normal life.
Regarding the Disability Certificate, I am of the view that this evidence is not sufficient to demonstrate the applicant’s entitlement to NEBs. The purpose of the Disability Certificate is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. The information contained in a Disability Certificate is not a diagnosis, but rather a preliminary impression of the applicant’s physical presentation based on what information the applicant’s provides and the assessor’s cursory examination.
I find that the applicant has not met her evidentiary burden. I also considered Dr. Kangee’s letters to help me determine whether the applicant is entitled to NEBs. Dr. Kangee indicated that the applicant suffered pain in the shoulders, upper back and left foot since the accident. Dr. Kangee also stated that the applicant suffers from osteoarthritis and fibromyalgia, which is contrary to the applicant’s statement dated September 24, 2016, in which she indicates that she did not have any pre-existing conditions. It is not clear to me whether the applicant’s osteoarthritis and fibromyalgia were exacerbated by the accident. In Dr. Kangee’s letter dated July 15, 2015, he wrote that the applicant came in walking with a cane and that both knees were painful and swollen. Once again, the applicant has provided no evidence to support that these injuries are a result of the accident.
The respondent relied on insurer’s examination report from reports from Dr. Bentley, Physiatrist, Dr. Wiesenthal, Psychiatrist, and Mr. Hanes, Occupational Therapist, which all concluded that the applicant does not meet the test for non-earner benefits. From a physical and psychiatric perspective, both Drs. Bentley and Wiesenthal, opined that the applicant’s injuries are minor. From an occupational therapy perspective, Mr. Hanes concluded that the applicant has the functional abilities to complete her activities of daily living.
I am of the view that there is no compelling evidence, medical or otherwise, to suggest that the applicant meets the test for NEBs.
The next part of the test is to determine whether the applicant was continuously prevented from “engaging in” substantially all of the activities in which she engaged before the accident. As I have decided that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident, I need not decide whether she was continuously prevented from engaging in substantially all of the activities of her pre-accident life.
I find that the applicant has not met the burden of proof to demonstrate that she has met the test for NEBs.
b) Are the applicants injuries minor injuries as defined in s. 3 of the Schedule?
The Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. It limits treatment to $3,500.00.
An insured who does not have minor injuries or whose injuries are minor but who has shown compelling medical evidence that there is a pre-existing condition that would prevent recovery within the $3,500.00 amount, may access up to $50,000.00 of medical and rehabilitation benefits.
The respondent relied on Drs. Bentley and Wiesenthal reports dated January 23, 2015, which indicate that from both a physical and psychiatric perspective, the applicant’s injuries are minor and are treatable within the Minor Injury Guideline (MIG). Mr. Hanes conducted an in-home assessment and his report is dated January 23, 2015. He found that the applicant was able to complete her activities of daily living and did not find that she met the test for NEBs.
The applicant has not provided any compelling evidence to support her position that her injuries are not minor. The applicant’s own assessor, Dr. Ikonomakis, indicated in his Disability Certificate that the applicant suffers from minor injuries, which included sprain and strain of the spine and headaches. There is some evidence that the applicant may have pre-existing injuries, osteoarthritis and fibromyalgia. However, the applicant has not provided any persuasive evidence to determine whether these injuries were exacerbated by the accident and/or whether she cannot achieve maximal recovery within the MIG because of these pre-existing conditions.
Furthermore, the applicant has not commissioned any reports; there are no clinical notes and records from the applicant’s family doctor or treating chiropractor which shed light on the applicant’s injuries.
In the absence of any compelling evidence from the applicant, I find that the applicant’s injuries are minor and treatable under the MIG. In addition, the applicant has exhausted all funding under the MIG.
c) Is the applicant entitled to receive a medical benefit in the amount of $1,999.80 for a psychological assessment?
- Dr. Wiesenthal indicated that the applicant did not suffer any psychiatric or psychological impairment as a result of the accident. The applicant has not provided any evidence to suggest that she requires a psychological assessment. To my knowledge, there is nothing in Dr. Kangee’s letters that indicate that the applicant has a psychological impairment. As such, I find that the treatment plan is not reasonable and necessary.
d) Is the applicant entitled to receive a medical benefit in the amount of $2,160.51 for other assistive devices?
- The respondent indicated that at the time the treatment plan was submitted, the applicant had already exhausted the MIG limit of $3,500. Given that the applicant has exhausted the MIG limit, I find that the respondent is not required to fund this treatment plan.
e) Is the applicant entitled to receive a medical benefit in the amount of $1,810.38 for an in-home assessment?
- The applicant has sustained a minor injury. Under section 25(2) of the Schedule, an in-home assessment is only payable to those who have sustained non-minor injuries. As such, the applicant is not entitled to this benefit.
f) Is the applicant entitled to receive a medical benefit in the amount of $1,293.80 for a functional abilities examination?
- Given that the applicant has exhausted her $3500 limit under the MIG, I uphold the respondent’s position that it is not required to fund this examination.
g) Is the applicant entitled to receive a medical benefit in the amount of $1,050.59 for self-directed exercises?
- The respondent indicated that it has never received a treatment plan in this amount from the applicant. As such, its position is that this treatment plan was not properly submitted through the HCAI system and; therefore, the respondent is not required to fund this benefit. The applicant has not provided any information to refute the respondent’s position. In the absence of any other evidence, the respondent is not required to fund this treatment plan.
h) Is the applicant entitled to receive a medical benefit in the amount of $1,272.00 for chiropractic treatment?
- The respondent indicated that it has partially approved this treatment plan in the amount of $1,100. At the time this treatment plan was submitted, the applicant had already exhausted the MIG limit. As such, there was no further funding to pay for the $172 balance. The respondent is not required to pay the remaining amount of this benefit.
i) Is the applicant entitled to attendant care benefits in the amount of $1,060.70 per month for the period October 11, 2015 to June 22, 2016?
- Under section 14 of the Schedule, the respondent is not required to pay for attendant care benefits if the impairment is a minor injury. The applicant has not established that she sustained non-minor injuries. As such, I find that the applicant is not entitled to this benefit.
j) Is the applicant entitled to payment for the cost of an examination in the amount of $1,065.69 for an initial report, psychological, initial interview for psychological, pre-screen orthopedic?
- The respondent indicated that it has not received a treatment plan in the above mentioned amount. The respondent submitted that these items related to the cost of preparation of other treatment plans that were denied by them. The applicant has not provided any details about this treatment plan nor has she has indicated why the treatment plan should be payable. In the absence of this information, I find that the respondent is not required to fund this treatment plan.
k) Is the applicant entitled to interest on any overdue payment of benefits?
- The applicant is not entitled to any interest on any of the claimed benefits.
l) Is the respondent entitled to costs?
Rule 19.1 provides that costs may be requested in a proceeding where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.
The respondent has not provided any evidence to indicate that the applicant acted inappropriately during the proceeding.
I find that the respondent is not entitled to costs in this matter.
V. Order:
I order the following:
- The applicant is not entitled to receive non-earner benefits in the amount of $185.00 per week for the period January 22, 2015 to June 22, 2016.
- The applicant’s injuries are minor.
- The applicant is not entitled to a medical benefit in the amount of $1,999.80 for a psychological assessment.
- The applicant is not entitled to receive a medical benefit in the amount of $2,160.51 for other assistive devices.
- The applicant is not entitled to receive a medical benefit in the amount of $1,810.38 for an in-home assessment.
- The applicant is not entitled to receive a medical benefit in the amount of $1,293.80 for a functional abilities examination.
- The applicant is not entitled to receive a medical benefit in the amount of $1,050.59 for self-directed exercises.
- The applicant is not entitled to receive a medical benefit in the remaining amount of $172 from a treatment plan in the amount of $1,272.00 for chiropractic treatment.
- The applicant is not entitled to attendant care benefits in the amount of $1,060.70 per month for the period October 11, 2015 to June 22, 2016.
- The applicant is not entitled to payment for the cost of an examination in the amount of $1,065.69 for an initial report, psychological, initial interview for psychological, pre-screen orthopedic.
- The applicant is not entitled to interest on any of the claimed benefits.
- The respondent is not entitled to costs for this hearing.