J.D. v. The Dominion of Canada General Insurance Company, 2017 CanLII 33675

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

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:

J. D.

Applicant

and

Respondent

Adjudicator: Nicole Treksler

Appearances:

Applicant: J.D.

Representative for the Applicant: Rania Hafez Counsel for the Insurance Company: Dana R. Spadafina

Written Hearing: February 2, 2017

I. Overview:

The applicant, J.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 12, 2014 by Dr. Ayaz Ladak, Chiropractor, to support her claim for benefits.
The respondent denied the applicant’s claim for benefits based on insurer’s examination reports from Dr. Deborah Rabinovitch, Physiatrist, Dr. Stephanie Wiesenthal, Psychiatrist and Mr. Trevor Hanes, Occupational therapist, which all concluded that the applicant’s injuries are minor and do 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 NEBs. The test set out in the Schedule is a complete inability to carry on a normal life. Given that the applicant has reached the

$3500 limit for medical and rehabilitation benefits, she must show that her injuries are not minor and that the claimed benefits are reasonable and necessary.

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 not minor. 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 no, is the applicant entitled to the following medical benefits:

a. Is the applicant entitled to receive a medical benefit in the amount of

$1,950.00 for an in home Temporomandibular Join (TMJ) assessment, recommended by Nor Med Assessment services, denied by the respondent on October 15, 2014?

b. Is the applicant entitled to receive a medical benefit in the amount of

$1,557.49 for other assistive devices, recommended by Nor Med Assessment Services, denied by the respondent on October 10, 2014?

c. Is the applicant entitled to receive a medical benefit in the amount of

$539.80 for an in home assessment, recommended by Nor Med Assessment Services, denied by the respondent on September 4, 2014?

d. Is the applicant entitled to receive a medical benefit in the amount of

$1,293.80 for a functional abilities examination, recommended by Nor Med Assessment Services, denied by the respondent on October 10, 2014?

e. Is the applicant entitled to receive a medical benefit in the amount of

$1,983.81 for psychological services, recommended by Nor Med Assessment Services, denied by the respondent on September 22, 2014?

Is the applicant entitled to attendant care benefits in the amount of $1,451.79 per month for the period October 15, 2015 to June 22, 2016?
Is the applicant entitled to payment for the cost of an examination in the amount of $1,352.46 for an initial report, attendant care, initial interview psychological, pre-screen TMJ assessment, denied by the respondent on July 18, 2016?
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 there is no further funding available within the minor injury limits.
The applicant is not entitled to ACBs and none of the medical benefits are reasonable and necessary.
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 NEBs 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 submitted the following evidence to support her claim for benefits:

Disability Certificate completely by Dr. Ladak, Chiropractor, dated July 12, 2014;
Attendant care needs assessment completed by Ms. Beverly Neal dated September 21, 2014;
Progress notes from Physical Therapy One; and
Clinical notes and records (CNRs) from Dr. Anjum Kanjee from April 22, 2014 to February 17, 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 and Dr. Kangee’s CNRs were the most relevant documents to decide the applicant’s entitlement to NEBS. The Disability Certificate indicated that she met the test for NEBs. The CNRs documented the applicant’s physical presentation before and after the accident.
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.
According to Dr. Kangee’s CNRs, the applicant mostly experienced back, neck and shoulder pain and intermittent headaches since the accident up until December 5, 2016. The challenge with CNRs is that they do not provide any context as to how the applicant’s injuries prevented her from carrying on a normal life. Normally, applicants would provide me with such evidence as affidavits, physician reports, clinical notes and records from various medical practitioners to demonstrate their entitlement to the benefits. The applicant has not provided any such documentation.
I find that the applicant has not met her evidentiary burden. The applicant has not provided me with any compelling evidence outlining her activities and life circumstances prior to the accident. Without such evidence, I am unable to determine what activities the applicant engaged in before and after the accident. I also do not know what activities were more important to her. In fact, from the applicant’s submission, which is not evidence, I do not have any details of the applicant’s life, other that she was in an automobile accident and a narrative of the injuries that she sustained as a result of the accident.
Given the absence of compelling evidence from the applicant, I must rely on the insurer’s reports dated December 16, 2014 from Dr. Deborah Rabinovitch,

Physiatrist, Dr. Stephanie Wiesenthal, Psychiatrist and Mr. Trevor Hanes, Occupational Therapist to determine the applicant’s entitlement to NEBs.

Both Drs. Rabinovitch and Wiesenthal, from a physical and psychiatric perspective, respectively, indicated that the applicant does not meet the test for NEBS. Dr. Rabinovitch indicated that the applicant’s injuries are minor and that she has reached maximum recovery regarding her facility based therapies. He indicated that there is nothing preventing the applicant from returning to her daily activities. Dr. Wiesenthal concluded that the applicant’s reaction to the accident, reduced mood and anxiousness, is within normal limits and she is not suffering from a psychiatric impairment which would prevent her from carrying on a normal life.
Mr. Hanes’ report provided some details about the applicant’s life before and after the accident. At the time of the accident, the applicant was a single stay at home mom of four children. Her duties included housekeeping, meal preparation and care giving tasks. At the time of Mr. Hanes' assessment, the applicant had returned to all of her regular duties, with the report of some pain and/or reduction in some of the duties that require heavier lifting. The applicant reported that she is independent with dressing, grooming, toileting, showering, mobility tasks and meal preparation. Mr. Hanes concluded that the applicant does not suffer from a complete inability to carry on a normal life.
In review of the insurer’s reports, there were no significant changes in the applicant’s life after the accident to determine that she is unable to carry on a normal life. The respondent noted that it had requested another Disability Certificate and other compelling evidence from the applicant for the respondent to reconsider its position. The applicant did not submit any further evidence regarding this benefit.
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 the report of Drs. Rabinovitch Wiesenthal, 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).
The applicant did not provide any compelling evidence to support her position that her injuries are not minor. There is nothing in Dr. Kangee’s CNRs to suggest that the applicant has a pre-existing injury. In addition, the applicant’s own assessor, Dr. Ladak, indicated in his Disability Certificate that the applicant suffers from minor injuries, which were mostly soft tissue injuries to the neck and right shoulder with associated headaches.
In the absence of any compelling evidence from the applicant, I find that the applicant’s injuries are minor and treatable under the MIG.

c) Is the applicant entitled to receive a medical benefit in the amount of

$1,950.00 for an-in home TMJ assessment?

The applicant has exhausted treatment within the MIG and further, she has not provided any evidence of any dental injury. 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 $1,557.49 for other assistive devices?

The applicant has not provided any information regarding what type of assistive devices that she is referring to. The respondent indicated that the applicant’s request for assistive devices may have flowed from the applicant’s in-home assessment. Given the lack of information regarding this treatment plan and that

there is no further funding under the $3500 MIG limit, I find that this treatment plan is neither reasonable nor necessary.

e) Is the applicant entitled to receive a medical benefit in the amount of $539.80 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 not sustained 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 the applicant’s injuries are minor and there is no further funding available within the minor injury limits, I uphold the respondent’s position that they are not required to pay for a functional abilities examination.

g) Is the applicant entitled to receive a medical benefit in the amount of $1,983.81 for psychological services?

Dr. Wiesenthal indicated in her report dated November 17, 2014 that the applicant did not suffer from any psychiatric impairment as a result of the accident. The applicant has not provided any compelling evidence to challenge Dr. Wiesenthal’s findings. As such, I find that the applicant is not entitled to the benefit.

h) Is the applicant entitled to attendant care benefits in the amount of $1,451.79 per month for the period October 15, 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. Furthermore, in Mr. Hanes’ occupational therapist report, the applicant indicated that she is able to independently take care of her personal care needs. As such, I find that the applicant is not entitled to this benefit.

i) Is the applicant entitled to payment for the cost of an examination in the amount of $1,352.46 for an initial report, attendant care, initial interview psychological, pre-screen TMJ assessment?

The applicant has not provided any information about this claim. The respondent indicated that the applicant failed to provide details about this claim and the treatment plan was not submitted via HCAI. As such, it is the respondent’s position that this benefit is not payable. Given the lack of information about this treatment plan, I do not require that the respondent pay for this benefit.

j) 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.

k) 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 receive a medical benefit in the amount of

$1,950.00 for an in home TMJ assessment.

The applicant is not entitled to receive a medical benefit in the amount of

$1,557.49 for other assistive devices.

The applicant is not entitled to receive a medical benefit in the amount of

$539.80 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

$1,983.81 for psychological services.

The applicant is not entitled to receive attendant care benefits in the amount of

$1,451.79 per month for the period October 15, 2015 to June 22, 2016.

The applicant is not entitled to payment for the cost of an examination in the amount of $1,352.46 for an initial report, attendant care, initial interview psychological, pre-screen TMJ assessment.
The applicant is not entitled to interest on any of the claimed benefits.
The respondent is not entitled to costs for this hearing.

Released: April 12, 2017

Nicole Treksler, Adjudicator