G.V. v. Northbridge General Insurance, 2017 CanLII 77389

Licence Appeal Tribunal

Date: 2017-11-09 Tribunal File Number: 16-001698/AABS Case Name: 16-001698 v Northbridge General Insurance

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:

G.V.

Applicant

and

Northbridge General Insurance

Respondent

DECISION

Adjudicator: Eleanor White

Appearances: For the Applicant: David Levy, counsel For the Respondent: Shikha Sharma, counsel

Heard in writing on: January 16, 2017

OVERVIEW

1G.V. (“the applicant”) was involved in an automobile accident on August 18, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2G.V. applied to the respondent for a Non-Earner Benefit and medical benefits for treatment of his injuries. He was denied entitlement to medical benefits beyond the limit reserved for predominantly minor injuries as defined in the Schedule and administered under the Minor Injury Guideline (MIG). The respondent subsequently, in their responding submissions, determined that the applicant’s injuries were not minor and he was not subject to the MIG treatment cap of $3,500.00. It then approved the applicant’s medical treatment claim.

3G.V. was also denied the Non-Earner Benefit (NEB) after attending insurer’s examinations. G.V. did not agree with the respondent’s position and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a Case Conference, but the parties were unable to resolve the issues.

ISSUES IN DISPUTE

4Subsequent to the respondent’s change in position regarding entitlement to further medical treatment, and including new issues raised by the parties in their submissions, the following are the remaining issues in dispute:

(i) Is the applicant entitled to a NEB in the weekly amount of $185.00 from February 17, 2014 to the date of hearing and ongoing?

(ii) Is the applicant entitled to interest for any overdue payment of benefits?

(iii) Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

(iv) Is the applicant entitled to all outstanding amounts from previously incurred treatment plans?

(v) Is the applicant entitled to legal costs?

(vi) Is the respondent entitled to legal costs?

RESULT

5Based on the totality of the written evidence before me, I find that:

(i) The applicant is not entitled to receive a non-earner benefit of $185.00 per week for any period after the date of February 17, 2014, which is 26 weeks after the date of loss. The applicant did not meet his onus of showing he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

(ii) As I found the applicant ineligible for a NEB, he is also not entitled to the payment of interest on that benefit. I do find however that the applicant is eligible for payment of interest on the previously approved treatment plan invoiced in the amount of $2,464.28 by GTA Chiropractic Centre on June 7, 2014.

(iii) I find the applicant is entitled to an award for the belated decision of the respondent to change their position on the threshold of the applicant’s injuries and subsequent payment of the one remaining claim for a denied plan for treatment. The tardy decision to allow the applicant’s injuries to not be constrained by the Minor Injury Guideline disallowed for an extended period, this retired injured person access to treatment eventually deemed acceptable. The respondent will pay the applicant an amount of $1,232.14, 50% of the amount of the treatment plan submitted by GTA Chiropractic Centre dated June 7, 2014.

(iv) I cannot issue an Order in respect of all previously incurred medical benefits as they were withdrawn and are no longer before the Tribunal.

(v) Costs are not awarded to either party.

ANALYSIS

6All evidence submitted by the parties is documentary evidence and I have considered all the evidence before me in consideration of the issues in dispute.

Non-Earner Benefit (NEB)

7Eligibility for a NEB carries a high test and the onus is on the applicant to meet that test. The test for entitlement is described under s.12.(1) of the Schedule and stipulates that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

8The insurer, under s.12(4)(a) of the Schedule, is not required to pay a NEB for the first 26 weeks after the onset of the complete inability to carry on a normal life.

9The respondent cited the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which has provided me guidance in the determination of entitlement to a non-earner benefit. The principles are listed here:

(i) There must be a comparison of the Applicant’s activities and life circumstances before the accident to those post-accident.

(ii) The Applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident; the duration of which will depend upon the facts of the case.

(iii) All of the Applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

(iv) The Applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

(v) “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

(vi) If pain is the primary reason that an Applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the Applicant from performing those activities. The focus should not be on whether the Applicant can physically perform those activities.

10The applicant bears the onus to prove his claim for the non-earner benefit on a balance of probabilities. He must provide evidence to show a causal link between the accident and his impairment and that his impairment results in a complete and continuous inability to carry on a normal life.

11G. V. was injured as a passenger in a charter tour bus accident. He was thrown forward out of his seat (the bus was not equipped with seatbelts), hitting his chest and ribcage on the seat ahead and then fell into the central passageway onto his knees. He was 79 years of age at the time of the accident. He had pre-existing back, knee and foot conditions. The applicant had prior cardiac bypass surgery. The applicant claims he still has pain from the injuries arising from the accident.

12The only information regarding the applicant’s life before and after the accident is in his submissions. No evidence has been presented to me in the form of a statement, or an affidavit to support the submissions. For the record I will include the scenario described in his submission as follows: The retired applicant described his life pre- and post- accident in this manner:

(i) Pre-accident

(a) Attended temple several times per week

(b) Active member of community and at temple, including volunteering

(c) Daily groceries

(d) Shared house chores with his wife and daughter, liked to cook, vacuum

(e) Independent in his personal care tasks

13The record is unclear if prior to the accident he was already living alone in a senior’s apartment. He had been living with his wife in the apartment but at some time around the time of the accident, his wife began living with him on the weekend but with one of their daughters throughout the week. The timing of this change in living arrangement is not well described in submissions, but is mentioned in the IE reports. This is pertinent as it affects the applicant’s mobility, as neither G.V. nor his wife have a driver’s license and depend upon either their daughter or public transport for major shopping or rides to the temple.

(i) Post-accident

(a) Could not attend temple as much

(b) Stopped volunteering work at temple and in community

(c) Gave up most grocery shopping and cooking, did not vacuum

(d) Spent more time going to see doctors and getting therapy

(e) Required some assistance from his wife and daughter with his daily routine.

14The applicant submitted an initial Disability Certificate (OCF-3), completed by Dr. King, Chiropractor on October 4, 2013. The disability certificate estimated the duration of his impairment to be no more than 9 to 12 weeks. In Part 6 of the form, Dr. King checked off the box indicating that V. G. had suffered a complete inability to carry on a normal life during that estimated period. The OCF-3 was completed within the first 26 weeks post-accident, when NEBs are not payable.

15The insurer acknowledged in an Explanation of Benefit OCF-9 the application for a NEB cautioning G. V. that he may be entitled to the benefit but that there are conditions that must be met. The insurer advised that the benefit is not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life.

16The respondent did request an updated OCF-3 and it was supplied by Dr. H. Grigoropoulos, Chiropractor, dated June 4, 2014. The OCF-3 stated that G. V. was again considered completely and continuously incapable of carrying on a normal life and anticipated the duration of the impairment to be 9 to 12 weeks.

17The insurer sent V.G. notices for the following insurer examinations he was to attend:

• February 27, 2014, an orthopaedic assessment;

• February 7, 2014 and March 4, 2014, occupational therapy assessments; and

• April 1, 2014, psychological assessment with Dr. Curt West.

18The submission from the applicant includes only one notification, for the April 1, 2014 psychological assessment. Although the applicant submits he was not properly notified and could not attend the IEs, he provided no details as to the nature of the problem with the notification or the reason he was unable to attend.

19In correspondence from the respondent dated March 5, 2014, the applicant is informed that his NEB was suspended as of that date due to his non-compliance in attending an orthopaedic assessment on February 27, 2014, and Occupational Therapy assessments on February 7, 2014 and March 4, 2014 as well as the aforementioned assessment with Dr. West. Again there is no further information regarding this non-compliance from the applicant.

20The insurer rescheduled all of the assessments. G.V. attended the rescheduled assessments in the summer of 2014 and as a result of these examinations, the respondent advised him by letter dated August 29, 2014 that he was not found to be “suffering a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents him/her from engaging in substantially all of the activities that he/she ordinarily engaged in at the time of the accident”.

21At this point the respondent determines as a result of the Insurer’s Examination report that the applicant is ‘no longer eligible’ for the NEB, effective September 12, 2014, pursuant to section 37 (2) (c) of the Schedule. The respondent also refers to the suspension of the benefit on March 5, 2014 due to non-compliance, and finds that date fell within the applicant’s 26 week waiting period, thus no payment is due. I find this calculation to be incorrect, but irrelevant. Regardless of this incorrect date, the applicant was not found to be entitled to the benefit as he did not meet the test for NEBs.

22G.V.’s non-compliance issue has not been explained in his submissions, and there is no other supporting documentary evidence in the brief to rebut any of the opinions of the IE assessors. The reports of each of the IE assessors found his impairments did not meet the test required to qualify for a NEB.

23I reviewed the IE reports from Dr. Ato Sekyi-Otu, Orthopaedic Surgeon, Dr. Curt West, Psychologist and Jeff Ford, OT. G. V.’s account of his activities before and after the accident is fairly consistent throughout the 3 assessments. Although the reporting may acknowledge changes in the applicant’s pace, frequency or duration of activity, due to pain, each of the IE assessors found the applicant’s impairments did not result in a complete inability to carry on a normal life.

24I find the IE reports persuasive and find the applicant’s impairments do not meet the NEB test.

25In order to rebut the findings of the IE assessors G. V. must satisfy his onus in proving his entitlement to the NEB by providing evidence of the changes in his life after the accident. As summarized in the “Heath” principles, he must bring evidence that shows how a comparison of his life before and after the accident render him continuously and completely incapable of carrying on a normal life, engaging without limiting pain in activities he valued most.

26The file contains medical information and records that speak to the pre-existing conditions affecting heart, chest wall pain, shoulder pain and knee pain. There is also post-accident evidence of degenerative processes in the cervical and lumbar spine, bilateral knees and right shoulder. Whereas these findings may have finally allowed the respondent to change their position on allowing the applicant to be taken out of the constraints of the MIG, they did not persuade the respondent of his entitlement to the NEB. They do not persuade me either.

27The applicant submitted no evidence from friends, family or the temple, supporting the reported difference in his routine. There is no medical evidence that supports impairments directly linked to the accident that completely and continuously renders him unable to engage to a reasonable degree in the elements of a normal life. The evidence presented certainly supports taking him out of the limitations of the MIG, but does not entitle him to the non-earner benefit.

Is there a causal link between the applicant’s impairments and the accident?

28The respondent raised the issue of causation, asking if the applicant would be in a different situation now; if there had not been an accident. The medical evidence in the file shows pre-existing conditions that may well have been aggravated or perhaps exacerbated by the accident. Pursuant to s.12 (1)1 of the Schedule in order for the benefit to be payable, the impairment must be a result of the accident. I believe the applicant’s complaints of pain and a somewhat altered ability to carry on a normal life are primarily due to the exacerbation of pre-existing conditions and that may be caused by the accident, but I do not find the applicant meets the test for NEB as there is no evidence to support the position that he is completely unable to carry on a normal life, compared to his pre-accident state.

Is the applicant entitled to interest for any overdue payment of benefits?

29No, as the applicant is found to be not entitled to the non-earner benefit, he is not entitled to interest on the benefit. He is however entitled to interest on the amount of the treatment plan dated June 7, 2014 submitted by GTA Chiropractic Centre invoiced in the amount of $2,464.28, from the date of the denial of the plan to the date of the respondent’s agreement to remove the applicant from the MIG and pay this invoice, which will be stated as the due-date of the responding submissions, December 23, 2016.

Is the applicant entitled to an award because the Respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

30I note from the insurer’s response that 3 medical benefits were denied by the insurer as they found that the applicant’s injuries were considered ‘minor’ as defined in the Schedule. Two of the three were withdrawn at the case conference. In the applicant’s submissions, he requested that I order the payment of all outstanding medical benefits. Although I am unaware of what other treatment plans were denied, I am told by the insurer’s response there were at least 3 in dispute. The insurer found between the receipt of the applicant’s submissions and the writing of their response that the applicant’s injuries were no longer considered ‘minor’ and they stated they had paid the one plan still in dispute at the hearing, thus removing effectively resolving that issue in dispute.

31The applicant submits this is questionable practice and indeed I find it to be so, and also regrettable. The respondent advised the applicant and the Tribunal by a covering letter attached to its submissions that they had removed the applicant from the MIG and paid the treatment plan in dispute, without including any reasons for this reversal. The absence of a more timely consideration of this issue left this injured and senior applicant in a position in which he was disallowed payment of medical benefits for over two years prior to the insurer’s last minute change of heart.

32I find this entitles the applicant to an award of 50% of the value of the treatment plan submitted by GTA Chiropractic Centre in the amount of $2,464.28, because the insurer unreasonable withheld or delayed payments of the treatment plans submitted to the respondent. The amount of the award would thus be $1,232.14.

Is the applicant entitled to payment of all past incurred and denied treatment plans?

33I cannot order, as requested by the applicant, the respondent to pay any or all outstanding incurred treatment plans, as they are not before me. The change in coverage of the applicant’s coverage, by no longer being limited by the MIG allows the insurer to examine any such claims anew. I would expect them to do so.

Is either party entitled to legal costs?

34Pursuant to LAT Rule 19, the Tribunal may order costs if a party has acted unreasonably frivolously, vexatiously, or in bad faith in a proceeding. The party making that request to the Tribunal must set out its reasons for the request and the particulars of the other party’s conduct that is alleged to be unreasonable, frivolous, vexatious, or in bad faith.

35Neither party has met their duty with respect to the Rule.

ORDER

36The appeal for payment of a Non-Earner Benefit is dismissed as the payment of any interest on the benefit.

37The applicant is due interest on the amount paid for a previously denied treatment plan submitted on June 7, 2017 and denied on August 1, 2014. The interest shall be calculated as of the date of denial up until the date of the reversal of the respondent’s position in its responding submissions on December 23, 2014.

38An award, pursuant to O. Reg. 664 is granted, as the payment of a treatment plan submitted by GTA Chiropractic Centre on June 7, 2014 in the amount of $2,464.28 was unduly delayed. The amount of the award is 50% of the invoiced amount, an amount of $1,232.14.