A. W. v. Cooperators General Insurance Company, 2017 CanLII 9815

Tribunal File Number: 16-000283/AABS

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:

A. W.
Applicant

and

Cooperators General Insurance Company
Respondent

DECISION

Adjudicator: Cynthia Pay

Appearances:

Applicant: A. W.
Counsel for the Applicant: Chuka Nwobele
Representative of the Respondent: Susana Giugovaz, Dispute Resolution Specialist
Counsel for the Respondent: Jonathon Kahane-Rapport

Held in person: September 22, 2016

Overview:

1. The applicant was involved in an automobile accident on February 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). He was struck by a car while walking.

2. He applied for non-earner benefits and funding for treatment, including physiotherapy. These benefits were denied by the insurer. The insurer took the position that the applicant did not meet the test for non-earner benefits. Treatment was denied by the insurer on the basis that the applicant’s injuries were minor and that he had exhausted the $3500 available for treatment for minor injuries. As a result, the applicant submitted an Application to the Licence Appeal Tribunal - Automobile Accident Benefits Services (the “Tribunal”) regarding his entitlement to these benefits. The Tribunal scheduled an in-person hearing to determine his eligibility.

Preliminary issue:

3. At the hearing the applicant requested permission to add two further treatment plans to those listed on the Order setting up his hearing. The respondent insurer consented to the addition of these issues, which are listed below as issues 3 iv) and 3 v).

Issues:

1. Is the applicant entitled to non-earner benefits at the rate of $185.00 per week ongoing from 26 weeks post-accident?

2. Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule?

3. If so, is the applicant entitled to: i) $399.00 for treatment recommended by the MedRehab Group in a treatment plan (OCF-18) dated September 22, 2015? ii) $1,295.98 for treatment recommended by the MedRehab Group in a treatment plan (OCF-18) dated May 27, 2015 less amounts approved/paid by the Insurance Company? iii) $598.98 for treatment recommended by the MedRehab Group in a treatment plan dated January 14, 2016? iv) $299.25 for physiotherapy recommended by the MedRehab Group in an invoice dated January 25, 2016? v) $200 for completion of a disability certificate by MedRehab in an invoice dated April 4, 2016?

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

5. I answer each question in the negative. The applicant has not proved that he is eligible for non-earner benefits or that his injuries are not predominantly minor injuries.

Non-Earner Benefit

Law

5. The test for non-earner benefits is set out in the Schedule as follows:

6. (1) 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:

7. 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.

8. Section 12(4)(a) of the Schedule provides that the insurer is not required to pay a non-earner benefit “for the first 26 weeks after the onset of the complete inability to carry on a normal life”.

9. Section 3 of the Schedule provides further explanation of the test:

(7) For the purposes of this Regulation,

(a) a person suffers 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.

Facts and Analysis

8. Based on the evidence before me, I do not find that the applicant has proven that he meets the test for non-earner benefits. Although he does appear to suffer from some physical limitations, he has not met the burden of proving his eligibility for these benefits on the balance of probabilities.

9. According to the testimony of the applicant and the affidavit of Debbie K., Claims Adjuster with The Co-operators General Insurance Company (“The Co-operators”), the parties agree that the applicant was not working at the time of the accident and therefore would not qualify for an income replacement benefit.

10. According to the affidavit of Ms. K., and accompanying documents, the applicant initially applied for Non-Earner Benefits by way of an OCF-3 Disability Certificate dated March 11, 2015, but the health practitioner checked “no” in response to the question of whether the applicant met the test for Non-Earner Benefits. This OCF-3 was submitted within the 26 week waiting period for non-earner benefits.

11. The applicant submitted a further OCF-3 Disability Certificate dated April 4, 2016 that was supportive of his eligibility for non-earner benefits, as the box regarding the non-earner test was checked off as “yes”.

12. The benefit was denied by the respondent in response to the original application, and this denial was confirmed after an Insurance Examination and Paper Review by an Orthopaedic Surgeon dated April 26, 2016.

13. The test for non-earner benefits was discussed in the case of Heath v Economical Mutual Insurance Company¹. The court in Heath held that

… the starting point for the analysis of 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…all of the pre-accident activities in which the claimant ordinarily engaged should be considered…[and] greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life (at para. 50).

14. It was held that the claimant must establish that he is “continuously prevented from engaging in substantially all of his pre-accident activities”².

15. The case of Galdamez v Allstate Insurance Co. of Canada³ was also cited by both parties as providing insight into the non-earner test. In this case, the Court of Appeal for Ontario cited the principles set out in Heath as well as finding that although it was unlikely, it was still possible for someone who can work at their pre-accident job to meet the disability standard for non-earner benefits if they “suffered a severe diminution in their overall quality of life, even though they may be able to work” (at paras 43 and 48).

16. As noted above, the applicant submitted a second OCF-3 form completed by a health practitioner that supported his eligibility for non-earner benefits. No further detail was provided on the form in relation to non-earner benefits except a list of injuries including whiplash associated disorder; sprain and strain of thoracic and lumbar spine, knee and ankle; and headache.

17. The applicant testified at the hearing regarding his pre- and post-accident activities. He testified that before the accident, he was able to drive his kids to school every day and do chores such as laundry, gardening, shovelling snow, taking out the garbage, dusting, vacuuming, washing windows, grocery shopping and cooking daily. He reported that he was “handy” and able to take on tasks such as appliance repair and servicing his own car. After the accident, he testified that as a result of pain, he could no longer take his kids to school or carry out tasks such as gardening, mowing the lawn or ironing clothes. He can no longer service his own vehicle or do appliance repairs. His ability to buy groceries was also reduced. He used to take long walks with his family and walk on a treadmill, but can no longer do so. He can cook sometimes but can no longer do so on a daily basis. He used to enjoy car trips with his family to places such as Niagara Falls or Montreal, but can no longer tolerate long drives. He can engage in activities, but with pain. He testified that he takes Naproxen three times per day (more than the prescribed dose of twice per day) as well as Tylenol 3 at night as prescribed by his doctor. He described experiencing pain in his back, right shoulder and left ankle. Under cross-examination, he testified that he is able to do light cooking tasks, light grocery shopping and drive locally.

18. The respondent submitted a surveillance report dated May 25, 2016. This report outlined activities carried out by the applicant in May, 2016, including driving a car and attending at a phone store and flea market booth on two different days. The report stated that the applicant remained in the store for 8.5 hours and at the flea market for about 6 hours on the days in question. The applicant was observed to enter and exit his car, walk and climb stairs, carry light objects such as a bag of takeout food without “any obvious signs of physical restriction”.

19. Regarding the surveillance report, the applicant did not dispute the activities reported, and confirmed in his testimony that he helps out at a phone store owned by his friend. He stated that getting out of the house was helpful to him as a form of therapy, since it was better for him than staying in alone all day. Under cross-examination, the applicant confirmed the details of the surveillance report, which showed him driving a friend to work, taking his car into a body shop and driving a “loaner” vehicle, going into various businesses such as a takeout shop, and attending at his friend’s phone store and remaining there from about 10:30 to 7:00 p.m. on the day of surveillance. He testified that he attends at the store most days and that during the day he serves customers and helps repair issues such as software problems on customers’ phones. He stated that he does not have to do any heavy physical tasks there. He also confirmed that he attends at a flea market on weekends to staff his friend’s booth, which also involves telephone repair and sales. The applicant testified that he is able to go into the shop and flea market late or leave early as needed if he is in pain or sick, and that he is paid on a casual basis in cash.

20. The applicant provided medical records including the hospital records following the accident, his family doctor’s clinical notes and records, various x-ray and MRI reports and a print out from his pharmacy. His family doctor’s notes report that the applicant was experiencing ongoing left leg/ankle pain, lower back pain and right shoulder pain following the accident, as confirmed over a series of visits following the accident and continuing to March 2, 2016. These notes, however, do not provide any detail about the applicant’s pre- and post-accident activities, nor did the applicant submit a medical assessment or report that addresses the impact of the accident on his activities.

21. The respondent provided copies of three orthopaedic surgery assessment reports by Dr. Erin Boynton. The first two assessments focused on the issue of the denied treatment plans and the applicability of the Minor Injury Guideline. The third report dated April 26, 2016 consisted of a paper review focused on the non-earner benefit application. This report cited a previous report, where the assessor had stated that her physical examination of the applicant

… fails to show any significant radicular symptoms or signs. He has general deconditioning and soft tissue imbalances around his pelvis and shoulder girdle and weakness of his core which account for his ongoing symptoms.

Currently, I would not limit him in any of his activities of daily living, housekeeping, home maintenance, or employment duties and would suggest that he return to his usual activities.

22. The assessor went on to provide the opinion that, based on her previous assessment and documents reviewed, the applicant “does not suffer a complete inability to carry on a normal life”. I give this report limited weight, as the doctor did not conduct an in-person assessment with respect to the specific criteria of the non-earner benefit, but instead relied on an earlier in-person assessment that focused on the applicability of the Minor Injury Guideline and medical and rehabilitation benefits. Further, the doctor’s comments focused on whether or not she would “limit” the applicant’s activities, and did not provide a substantive assessment of whether or not he was prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

23. On the basis of the evidence before me, however, I find that the applicant has not established on the balance of probabilities that he meets the test for non-earner benefits. Based on his testimony, which I found to be generally credible, I find that the applicant does face limitations in his ability to do certain activities involving heavier exertion, such as shovelling snow, long car trips and heavy cooking and grocery shopping. His evidence was consistent with his medical evidence such as his doctor’s clinical notes, which confirm that he had consistently been suffering from back, left leg/ankle and right shoulder pain with reduced range of motion following the motor vehicle accident.

24. The applicant testified that he is still able to do many other activities, however, such as shorter drives, walking and climbing stairs, attending at work on a daily basis, remaining in the store for a full day and assisting customers, interacting with customers, helping sell and repair cell phones, doing light cooking and grocery shopping and so on. Aside from the clinical notes and records referenced above, the applicant did not provide further medical evidence specifically addressing his ability to engage in the activities in which he ordinarily engaged in before the accident. His account of his activities does not suggest that he was prevented “from engaging in substantially all of the activities” in which he ordinarily engaged before the accident. As a result, I find that the applicant did not prove on the balance of probabilities that he is eligible for non-earner benefits.

Minor Injury Guideline

Law

25. Section 3(1) of 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. As provided by section 18(1) of the Schedule, a person who sustains an impairment that is “predominantly a minor injury” can only access up to $3,500 in medical and rehabilitation benefits.

26. Section 38(2) of the Schedule states that the $3,500 limit does not apply to an insured person “if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500 limit . . .” In the current Application, however, the applicant only argues that his injuries are not minor, and does not submit that a pre-existing medical condition brings him out of the Minor Injury Guideline.

27. The applicant bears the onus of proving that he has accident-related impairments that are not minor.

Facts and Analysis

28. Based on the evidence before me, I do not find that the applicant has proved on the balance of probabilities that his injuries are not minor.

29. According to the Motor Vehicle Collision Report submitted by the applicant, he was struck by a car while walking on a sidewalk. The Ambulance Call Report states that he was knocked to the ground and was suffering from left foot and knee pain. Emergency records from William Osler Health Centre following the accident record left knee and ankle injuries as a result of the accident.

30. The applicant also submitted the clinical notes and records of Dr. C, his family doctor. The doctor’s “Progress Notes” submitted date back to before the accident, starting on March 5, 2012 and continue until March 16, 2016. The pre-accident notes document fairly infrequent doctor appointments or contact (eight entries from March 5, 2012 to June 7, 2014) and deal with issues such as diabetes, hypertension, and an annual physical. There is no mention of neck, back, knee or foot pain in these clinical notes.

31. The next entry after June 7, 2014 was on February 25, 2015 in relation to injuries from the car accident. Dr. C describes “pain in L upper leg and ankle” and lists “st inj” which appears to indicate soft tissue injuries. There are nine visits documented in the notes between February 25, 2015 and July 21, 2015, which I find to be an increase in frequency in comparison to his visits before the accident. Each visit after the accident (except for the applicant’s annual physical) are for issues relating to the car accident, including neck and shoulder pain, decreased range of motion, tenderness on palpation of paraspinal muscles, cervical spine, tender right shoulder girdle, right shoulder and low back pain, and left ankle tenderness. On the first visit post-accident on February 25, 2015 only left upper leg and ankle pain are noted. Back and shoulder pain are mentioned in the following visit on March 2, 2015. On April 22, 2015 Dr. C. notes that the applicant continued to have pain in his left foot, lower back and right neck, and recommended use of a cane, physiotherapy and medication. These visits continued and Dr. C. ordered x-rays and an MRI to investigate these issues.

32. X-rays taken on July 16, 2015 show moderate degenerative changes and osteoarthritis in the right shoulder, and mild degenerative disc disease and osteoarthritis in the lumbar spine. Ultrasound of the right shoulder on the same day shows rotator cuff tendinopathy with degenerative changes but no evidence of rotator cuff tear.

33. An MRI conducted on January 4, 2016 provided findings including disc bulging, minor osteophyte and mild facet joint hypertrophy, mild bilateral foraminal narrowing and mild to moderate spinal stenosis in a range of areas of the spine. Impression is provided as:

Degenerative changes as described.

At L3-4, there is mild to moderate spinal stenosis. Mild to moderate bilateral foraminal narrowing.

Foraminal narrowing at L2-3 and L4-5 as described.

34. The respondent provided an Orthopaedic Surgery Assessment Report by Dr. Erin Boynton based on an assessment on January 7, 2016. The assessment was conducted in person and took 30 minutes to complete. Dr. Boynton examined the applicant and found that the applicant’s right shoulder range of motion was limited by pain; and that he reported low back pain with squatting and touching the ground. Dr. Boynton reviewed the available medical information and noted no serious signs of trauma to the shoulder or low back. She found based on her physical examination that there was no significant radicular symptoms or signs. Dr. Boynton provided her opinion that the applicant’s right shoulder and low back complaints are unrelated to the accident given the delay in onset of symptoms, and linked these issues to age-related degenerative changes and deconditioning, and found the applicant to be suffering from a predominantly minor injury.

35. Dr. Boynton also provided an addendum report dated February 26, 2016 in which she reviewed the results of the applicant’s MRI of the lumbar spine, and confirmed her opinion that the applicant’s shoulder and low back issues were not related to the accident as a result of the delay in onset of symptoms. She noted that in her opinion, the accident-related impairments were the left ankle and leg injuries, but that they had now healed, and maintained her opinion that the applicant’s injuries were predominantly minor injuries.

36. Based on the clinical notes of the family doctor there appears to be a correlation between the timing of the applicant’s back pain and the accident. I also find that the results of the MRI may indicate injuries that are outside the Minor Injury Guideline. I have no medical evidence or opinion before me, however, providing any kind of causal link between the MRI findings and the accident. A report from the family doctor or another assessor may have been helpful in exploring this causal link, or to provide a counterpoint to the opinions of Dr. Boynton, the Insurance Examiner. In the absence of any medical evidence providing this causal link, I find that the applicant has not met his burden of proving on the balance of probabilities that his accident-related injuries are outside of the Minor Injury Guideline.

37. The respondent submitted that the $3500 for treatment available under the Minor Injury Guideline had been exhausted, and this was confirmed in the affidavit of the Claims Adjuster, Debbie K. This was not disputed by the applicant. As a result, I find that all treatment benefits available under the Minor Injury Guideline have been exhausted. It is therefore unnecessary to determine whether or not the treatment plans in dispute are reasonable and necessary.

Conclusion:

Regarding the issues in dispute, my conclusions are as follows:

a) The applicant is not entitled to non-earner benefits.

b) The applicant’s injuries do not fall outside the Minor Injury Guideline.

c) The applicant is therefore not entitled to:

i) $399.00 for treatment recommended by the MedRehab Group in a treatment plan (OCF-18) dated September 22, 2015;

ii) $1,295.98 for treatment recommended by the MedRehab Group in a treatment plan (OCF-18) dated May 27, 2015 less amounts approved/paid by the Insurance Company;

iii) $598.98 for treatment recommended by the MedRehab Group in a treatment plan dated January 14, 2016;

iv) $299.25 for physiotherapy recommended by the MedRehab Group in an invoice dated January 25, 2016;

v) $200 for completion of a disability certificate by MedRehab in an invoice dated April 4, 2016.

d) Because no benefits are overdue, the applicant is not entitled to interest.

Released: 07/02/2017

Cynthia Pay,
Adjudicator

Footnotes

1. 12009 ONCA 391, 2009 95 OR (3d) 785
2. 2ibid.
3. 3(2012) 2012 ONCA 508, 111 OR (3d) 321