M.H. v. Certas Direct Insurance Company, 2017 CanLII 59506

Date: 2017-09-08

Tribunal File Number: 16-003657/AABS

Case Name: 16-003657 v Certas Direct Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

M.H.

Applicant

And

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

Legal Representative for the Applicant: Yu Jiang, Paralegal

Legal Representative for the Respondent: Mohamed Hashim, Counsel

HEARD: Written Hearing: March 2, 2017

OVERVIEW:

1M.H. (the “applicant”) was injured in a motor vehicle accident on July 3, 2014 and applied for accident benefits to Certas Direct Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied her claim for a non-earner benefit and a medical benefit for chiropractic services, both of which are the subject of this dispute.

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). The parties were unable to resolve their dispute at a case conference held on January 30, 2017, and the matter proceeded to this written hearing.

3The applicant argues that she is entitled to the non-earner benefit as she suffers a complete inability to carry on a normal life. The applicant further argues that the medical benefit is reasonable and necessary as she still suffers from pain as a result of her accident related impairments and was diagnosed with chronic pain syndrome. The applicant relies on a disability certificate (“OCF-3”) dated August 14, 2014, prepared by Dr. Thomas Blau (chiropractor), the clinical notes and records of her family doctor and the reports of Samantha Yee (psychotherapist) dated April 1, 2015 and the report of Dr. Joseph Wong (physiatrist) dated December 12, 2016 to support her position.

4The respondent submits that the applicant has not met her evidentiary burden in establishing that she meets the complete inability test for a non-earner benefit. Further, the respondent argues that that their insurer examinations (“IEs”) support the position that she does not suffer a complete inability to carry on a normal life and that she has reached maximum medical recovery from her physical injuries caused by the accident. Therefore, the treatment plan for chiropractic services is not reasonable and necessary. The respondent relies on the IE reports of Dr. Leslie Kiraly (psychiatrist) and two reports of Dr. John Heitzner(physiatrist) to support their position.

ISSUES IN DISPUTE:

5The following issues are in dispute before the Tribunal:

1. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week from January 2, 2015 to date and ongoing?

2. Is the applicant entitled to receive a medical benefit in the amount of $2,480.64 for chiropractic services, recommended by Perfect Physio & Rehab Centre, in a treatment plan dated August 10, 2015?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT:

6After reviewing the parties’ submissions and documentary evidence and for the reasons that follow, I find the following:

1. The applicant is not entitled to a non-earner benefit.

2. The applicant is entitled to a medical benefit in the amount of $2,480.64 for chiropractic services, recommended by Perfect Physio & Rehab Centre, in a treatment plan dated August 10, 2015.

3. The applicant is not entitled to interest as the treatment has not been incurred.

THE LAW, EVIDENCE AND ANALYSIS:

Is the applicant entitled to a non-earner benefit?

7In determining whether or not the applicant is entitled to a non-earner benefit, section 12 of the Schedule provides that she must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and not qualify for an income replacement benefit.

8The leading case with respect to proving entitlement to a non-earner benefit establishes that a claimant must be able to prove that he or she has been continuously prevented from engaging in “substantially all” activities in which they engaged in before the accident. ¹ In order to assess this, one must look at the applicant’s pre and post-accident activities over a reasonable period of time before the accident. The onus is on the applicant to establish that she meets the test for entitlement to the non-earner benefit.

9I find the applicant is not entitled to payment of a non-earner benefit for the reasons that follow.

10First, other than the OCF-3 dated August 14, 2014, prepared by Dr. Blau (chiropractor) supporting entitlement to a non-earner benefit, the clinical notes and records and reports submitted by the applicant do not address the test to support entitlement to the benefit. For example, the psychological assessment of Ms. Yee dated April 1, 2015 diagnosed the applicant with Adjustment Disorder with depressed mood and Specific Phobia (vehicular travel) and recommended psychological treatment. While the report addresses some of the applicant’s limitations with respect to her post-accident activities, it failed to analyse her pre-accident activities and does not comment on the non-earner benefit or state that she suffers a complete inability to carry on a normal life.

11Furthermore, the physiatry assessment of Dr. Wong submitted by the applicant did not support entitlement to a non-earner benefit. The report was two pages long, had a three sentence description of the physical examination and diagnosed the applicant with myofascial injury of the cervical spine, thoracic spine and lumbosacral spine, insomnia, stress and chronic pain syndrome. Dr. Wong recommended antidepressants, sleeping pills and Tylenol 2 to treat the applicant’s chronic pain. Dr. Wong did not address the applicant’s pre and post- accident activities nor did he comment on the non-earner benefit or complete inability test. The medical records and reports submitted by the applicant fell short of proving her entitlement to the non-earner benefit.

12By contrast, the respondent’s IE reports of Dr. Kiraly and Dr. Heitzer address whether the applicant is entitled to a non-earner benefit. The opinions of these physicians found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. The evidence from the IE reports support that the applicant has not met the requirements under section 12 of the Schedule to qualify for a non-earner benefit. Their conclusions remain unrefuted by the applicant’s evidence.

13Second, while the applicant argues that the Court of Appeal set out the six factors to determine whether or not an individual has suffered a complete inability to carry on a normal life², the applicant’s submissions and affidavit fail to apply any of these factors with respect to her case. There was insufficient evidence with respect to her pre and post-accident activities. For example, all statements in her affidavit were very broad. What I found lacking from her affidavit was a breakdown of each activity she could do prior to the accident compared to the activities she can no longer do post-accident which is the test she needs to satisfy. Some examples include:

(i) Prior to the accident, the applicant was a homemaker and shared housekeeping responsibilities with her mother and sister-in law. Her affidavit states that post-accident, she cannot sweep, vacuum or do laundry as it irritates her pain. The applicant did not provide details with respect to what housekeeping activities she was responsible for prior to the accident and the frequency with which she was responsible for doing them. Further, other than her affidavit, no supporting evidence was submitted to support that she could no longer do these tasks.

(ii) Prior to the accident, she was a caretaker for her 7 year-old son which entailed taking care of him, driving him to his daily activities and playing with him. Following the accident, the applicant indicates that she can no longer do these activities due to pain and instead relies on her sister-in-law. There was no break down with respect to what those daily activities entailed or a description of how she would play with her son and how often. Evidence to corroborate the applicant’s self-reports would have been helpful.

(iii) Before the accident, the applicant enjoyed long drives and walks with her husband, attending social events and shopping at the mall. Following the accident, she no longer enjoys any of these activities due to pain and depressed mood. No details with respect to these activities and the frequency with which she used to enjoy them were provided.

14I found the descriptions of the applicant’s pre and post-accident activities too general and lacking in detail. In addition, no clarification was given with respect to the time period being assessed or the activities most important to her. It is not enough for the applicant to demonstrate that she has sustained injuries and that she suffers from physical pain. What the applicant must show is that the injuries and associated pain have significantly interfered with almost all of her pre-accident daily activities. A description of specific activities and how the accident has affected her ability to do them is required for that analysis.

15Third, surveillance evidence submitted by the respondent showed the applicant over a three-day time period taking her son to the bus stop, going to the bank, grocery shopping, shopping at the mall and carrying multiple bags from the store to the car. The date of the surveillance was February 3, 4 and 5, 2017, less than a week from when her affidavit was sworn. While the applicant is not seen driving in these videos, the videos depicting her shoe shopping at the mall does not portray an individual suffering from a complete inability to carry on a normal life. While shopping for shoes, she is seen bending over multiple times, and kneeling on the floor on one knee and standing up with ease.

16The applicant argues that I should give little weight to this surveillance as the respondent did not disclose its intention to acquire it at the case conference. Further, that while the video shows the applicant carrying out activities, it is impossible to ascertain the physical pain she was experiencing while carrying out these activities. Despite the fact that the respondent did not disclose its intent to pursue surveillance, the applicant had sufficient notice to respond to it in her reply submissions. Therefore, I considered the surveillance evidence in coming to my conclusions.

17I find that the surveillance evidence raises credibility issues which are particularly important when making a determination with respect to a non-earner benefit – especially in a written hearing. Regardless of the surveillance evidence, the applicant has not met her onus of proving on a balance of probabilities that she has suffered a complete inability to carry on a normal life as a result of the accident. Therefore, I do not find the applicant is entitled to a non-earner benefit.

Is the applicant entitled to the treatment plan for chiropractic treatment?

18Sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to or on behalf of an applicant so long as the applicant sustains an impairment as a result of the accident and that the medical benefit is a reasonable and necessary expense incurred as a result of the accident.

19In order to determine whether the treatment plan is reasonable and necessary, the applicant must show adequate medical reasons supporting the plan and the effectiveness of the treatment.

20I find the treatment plan for chiropractic services to be reasonable and necessary for the reasons that follow.

21I found the applicant provided sufficient medical evidence to demonstrate that she is still suffering from physical pain as a result of her accident related impairments despite the fact that three years has passed since the accident. For example, while the respondent describes the visits the applicant made to Dr. Lau, her family doctor, as scant, I found that she attended frequently enough complaining of her accident related impairments to support her ongoing need for treatment. Further, Dr. Lau felt the applicant’s complaints were sufficiently serious to refer her to Dr. Wong, physiatrist, who diagnosed the applicant with chronic pain syndrome. There was also evidence to support that the treatment the applicant received in the past was helpful in managing her symptoms and was supported by the treating doctor at the clinic the applicant was attending for treatment.

22The respondent submitted the IE report of Dr. Heitzner, physiatrist, dated October 19, 2015, who found that the treatment plan not reasonable and necessary as he determined that the applicant had reached maximum medical recovery from facility based treatment. The report indicates that physical treatment had been postponed in the past due to an unrelated rib fracture. Dr. Heitzner diagnosed the applicant with cervicothoracic strain and lumbar strain with no objective neurological impairment. At the assessment, the applicant reported that she still suffers from pain to her mid-back, lumbar region, neck and shoulders. The physical examination revealed that she still had difficulty putting her hands behind her head and back. The respondent further argued in its submissions that the applicant was travelling to Scarborough for treatment while she lived in Kitchener which does not make common sense.

23In response, the applicant pointed out that she travels to Scarborough for treatment because she has not been able to find a therapist in Kitchener who speaks Cantonese, her mother tongue. In addition, other reports confirmed that language barriers had impeded her ability to receive treatment, therefore delaying her ability to heal from her physical impairments.

24I believe that the applicant is still suffering from her accident related impairments as noted in all of the clinical notes and records and reports submitted. Further, evidence has been submitted that supports that the applicant’s treatment has been disrupted because of an unrelated accident and language barriers.

25Therefore, I find the treatment plan for chiropractic services is reasonable and necessary.

ORDER

1The application with respect to the non-earner benefit is dismissed.

2The applicant is entitled to the treatment plan for chiropractic treatment, in the amount of $2,480.64, as recommended by Perfect Physio & Rehab Centre, in a treatment plan dated August 10, 2015.

3The applicant is not entitled to interest as the treatment has not been incurred.

Footnotes

1. 1Heath v. Economical, 2009 ONCA 391, 95 O.R. (3d) 785
2. 2Heath.