Tribunal File Number: 17-006252/AABS
Case Name: 17-006252 v Aviva Insurance Canada
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.
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Dawn J. Kershaw
APPEARANCES:
For the Applicant: Ian Little & Dianna Morello, Counsel
For the Respondent: Marianne Davies, Counsel
HEARD: By telephone on May 10, 2018
OVERVIEW
1On October 18, 2016, the applicant was the driver of a vehicle that was sideswiped. The applicant lost control of her vehicle, which hit the curb and mounted the sidewalk before returning to the road. The applicant was taken to hospital by ambulance complaining of left shoulder pain and neck pain and stiffness. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The respondent approved some medical and rehabilitation benefits, attendant care and the cost of examinations, but refused to pay for a non-earner benefit and two treatment plans for medical benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the disputed benefits.
3A teleconference hearing took place at which time I heard oral evidence for the applicant from the following:
i. applicant;
ii. the applicant’s nephew; and
iii. a physiotherapist, Vimarshiny Sundaresan.
ISSUES IN DISPUTE
4The disputed claims in this hearing are:
i. Is the applicant entitled to a medical benefit in the amount of $1098.00 ($1176.50 was already approved, leaving $1098.00 outstanding) for assistive devices in a treatment plan submitted by New Age Specialized Assessments on February 14, 2017, denied on April 20, 2017 and partially approved on April 18, 2018 (Issue 1)?
ii. Is the applicant entitled to a medical benefit in the amount of $3153.34 for physiotherapy and massage recommended in a treatment plan submitted on September 22, 2017, initially denied on October 11, 2017 pending the applicant attending an insurer’s examination (IE), and denied again on April 18, 2018 after the IE (Issue 2)?
iii. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 19, 2017 to date and ongoing (Issue 3)?
iv. Is the applicant entitled to an award under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the Applicant (Issue 4)?
v. Is the applicant entitled to interest on any overdue payments (Issue 5)?
RESULT
5Based on the evidence before me, I find that the applicant is entitled to:
i. payment for the orthopaedic mattress, over toilet safety frame, anti-fatigue mat, bi-lateral railing and long-handled bath sponge (part of Issue 1).
ii. a non-earner benefit of $185 per week from April 19, 2017 and ongoing (Issue 3); and
iii. interest on the outstanding amounts.
6I find that the applicant is not entitled to:
i. payment for blind spot mirrors for her car (part of Issue 1);
ii. a medical benefit in the amount of $3153.34 for physiotherapy and massage (Issue 2);
iii. an award under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the Applicant (Issue 4).
REASONS FOR DECISION
Assistive Devices – Issue 1
7In the treatment plan dated January 31, 2017, the applicant is seeking assistive devices, including an orthopaedic mattress, over toilet safety frame, anti-fatigue mat, bi-lateral railing, long-handled bath sponge and blind spot mirrors for her vehicle.
8Entitlement to medical benefits is determined under sections 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating on a balance of probabilities that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.
9The applicant’s family doctor, Dr. Dhaliwal, completed an OCF-3 Disability Certificate on November 16, 2016. He stated that the applicant’s injuries included cervical spine whiplash, and a pre-existing left shoulder sprain that was worsened in the accident. He anticipated that her recovery would exceed 12 weeks because of the severity.
10In her January 31, 2017 report, the occupational therapist, Naomi Gallor, recommended the above assistive devices.
11After reviewing the IE report, the respondent approved $1176.50 of the total proposed amount of $2274.50, including payment for the grab bar and shower chair, as well as payment for education sessions, travel and documentation time and delivery costs. It maintained its denial of the remaining cost of assistive devices totalling $1098.00 as not reasonable and necessary.
12Ms. Gallor stated in her report that the mattress was to relieve the applicant’s pain while lying down to improve sleep patterns. She reported that at that time the applicant had neck, left shoulder, left arm, lower back and knees pain.
13The respondent did not approve payment for the mattress. The IE assessor, Dr. Chmiel, maintained the mattress was for back pain, which the applicant said had improved for the most part. However, he also reported that she could not lie on her left shoulder at night. The applicant maintains she requires the mattress for neck and shoulder pain as well as to cope with sleep disturbance since the accident.
14Given the applicant’s reported pain and Ms. Gallor’s assessment, I find that the applicant is entitled to payment for the orthopaedic mattress. This finding is also supported by the IE assessor’s finding that the applicant could not lie on her left shoulder at night. While Dr. Chmiel took the position that because the applicant did not report back pain to her doctor until April 2017 it was not accident-related, the applicant had reported back pain to Ms. Gallor as early as January 2017. In addition, the mattress was not recommended solely for back pain.
15I also find that the applicant is entitled to payment for the over toilet safety frame, anti-fatigue mat, bi-lateral railing and long-handled bath sponge. These are consistent with Ms. Gallor’s assessment of what the applicant required because of her neck, shoulder, arm, lower back and knee pain and limitations at the time the items were requested. The IE provides no reasons for why these items are not reasonable and necessary.
16I find that the applicant is not entitled to payment for blind spot mirrors for her vehicle. She argued in her submissions for a non-earner benefit that she no longer drives, which renders the mirrors unnecessary.
Physiotherapy and Massage – Issue 2
17The applicant claims entitlement to a medical benefit in the amount of $3153.34 for physiotherapy and massage recommended in a treatment plan submitted on September 22, 2017, initially denied on October 11, 2017. After the applicant attended an IE, the respondent maintained its denial on April 18, 2018.
18A physiotherapist and chiropractor authored the treatment plan. They stated that the applicant’s injuries interfered with her ability to carry out her tasks of employment [though the applicant did not work] and her activities of normal living. The list of treatment included “exercise and therapy in multiple body sites and therapy NEC soft tissue of head and neck”. The treatment plan recommended treatment for pain reduction, to reduce muscle hypertonicity, and to increase range of motion, strength and core stability so the applicant could return to her activities of normal living.
19They stated that the range of motion in the applicant’s neck and back were normal, and her active left shoulder range of motion was about 80% improved. It was reported in one part of the treatment plan that the applicant was about 70% improved overall, but in another it states that the applicant reported being 75-80% improved.
20In January 2017, almost eight months prior to this treatment plan, Ms. Gallor reported that the applicant should continue an active and passive rehabilitation program for pain management and education, to increase her range of motion and to strengthen and stretch. The respondent paid for physiotherapy from October 2016 to September 2017.
21The treatment plan stated that the applicant reported decreased pain and was performing her at-home exercises regularly, and recommended continued therapy to permit her to make a full return to her pre-accident activities. The practitioners expected continued progress.
22A physiotherapist, Vimarshiny Sundaresan, from the clinic that prepared this the treatment plan, testified on behalf of the applicant. She was part of the team who treated the applicant, but did not recall when she last had any interaction with her. She did not complete this treatment plan, but completed a similar one in May 2017. This treatment plan proposed 16 sessions over 8 weeks, and she presumed the treatment would include mostly exercises and functional restoration, as well as laser treatment for calcification of the shoulder. She testified prior treatment had helped enable the applicant to now do all kinds of things with help from her grandson. Ms. Sundaresan testified at-home exercises were not an appropriate substitute for therapeutic treatment.
23Dr. Chmiel, a physiatrist, conducted the IE in January 2018. The applicant reported that she started physiotherapy three times a week, which then reduced to two times a week and at the time of the assessment was once a week. She reported being about 70% better, but had continued pain in her neck, left shoulder (her worst problem) and low back. Dr. Chmiel stated the applicant had left shoulder pain when taking off her coat, and she had left deltoid and supraspinatus atrophy and restricted range of motion. She also had neck tenderness, and complained of mild low back discomfort.
24Dr. Chmiel pointed out that this was an exacerbation of a shoulder injury before the motor vehicle accident. In 2015, an orthopaedic surgeon diagnosed the applicant with a frozen shoulder, osteoarthritis and rotator cuff tendinopathy.
25Dr. Chmiel stated that the applicant had not reached maximum medical recovery and should have an x-ray guided cortisone injection, and perhaps manipulation under anaesthetic. She was not supportive of ongoing physiotherapy and massage as set out in the treatment plan because the applicant had not had any improvement in her shoulder pain for more than a year. In addition, the applicant was very good at doing range of motion and strength exercises on her own.
26The onus is on the applicant to prove that the proposed treatment plan is reasonable and necessary. There is no definition of reasonable and necessary in the Schedule.
27After having reviewed all of the medical evidence and submissions, I find the proposed treatment plan is not reasonable and necessary, for the following reasons.
28In the insurer’s explanation of benefits, dated October 11, 2017, the respondent did not approve the treatment plan because in its opinion the applicant should have achieved maximum medical recovery (MMR) by that time. Though Dr. Chmiel, the respondent’s IE assessor, said she had not achieved MMR by that point, she recommended alternative, more aggressive, treatment to further physiotherapy and massage, which in her view had ceased helping.
29By the time the treatment plan was submitted, the applicant had been receiving physiotherapy for about one year and was about 70 to 80% improved. Her worst problem was her shoulder. While the physiotherapist who completed the treatment plan said he expected to see further improvement with more therapy, there were no physiotherapy records to support this view because the only records provided covered the period from October 2016 to March 2017. There were no records for April to September 2017. As such, I could not assess whether the applicant continued to improve. Ms. Sundaresan’s evidence did not assist me because she could not recall when she had last seen the applicant.
30The respondent ceased approval for further physiotherapy in September 2017, having continued it for an additional eight months after Ms. Gallor advised that the applicant should continue that treatment.
31The treatment plan indicated that the applicant’s range of motion in her neck and back were normal, which contraindicates ongoing massage and physiotherapy. While Ms. Sundaresan testified she presumed the treatment would include laser for the applicant’s shoulder calcification, there was no such indication in the treatment plan, and she was not the person who completed this treatment plan. In light of all these factors, and the fact that the applicant’s worst problem is her shoulder, which in Dr. Chmiel’s opinion requires different treatment because of a lack of improvement with physiotherapy even up to the date of her IE, I find the treatment plan not reasonable and necessary.
Non-earner benefit (Issue 3)
32Pursuant to section 12 of the Schedule, the applicant is entitled to a non-earner benefit of $185 per week, after a 4 week waiting period, if she can prove that she has a complete inability to carry on a normal life during the 104 weeks after the motor vehicle accident. Section 3 defines a complete inability to carry on a normal life as an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. The onus is on the applicant to establish that she meets the test for entitlement to the non-earner benefit on a balance of probabilities.
33The Court of Appeal set out how to determine whether an applicant has a complete inability to carry on a normal life as follows1:
i. Compare the applicant’s activities of daily living before and after the accident;
ii. Consider all of the applicant’s pre-accident activities during a reasonable period of time before the accident, perhaps giving greater weight to the activities the applicant identifies as being important to her pre-accident life;
iii. Consider whether the applicant is continuously prevented from engaging in substantially all pre-accident activities;
iv. Take a qualitative perspective to determining if the applicant is engaging in the activity post-accident; and
v. Assess whether the degree of the applicant’s pain is such that it prevents her from engaging in the activities.
34The now 71 year old applicant relied on medical evidence, her affidavit sworn on March 28, 2018, and her oral evidence. Before the accident, she was wholly independent, lived alone, drove herself wherever she wished to go and did all her own cooking, housekeeping and shopping. About six months before the accident, she retired at 69 from her job as a daycare worker who worked with small children. Although she had been diagnosed with rotator cuff tendonitis/frozen shoulder, other than feeling aches and pains, she had no limitations in her daily activities.
35Before the accident, she was active in her church, attending a minimum of three times a week and volunteering for church activities and social events. She was also a church youth group leader and led weekly meetings and planned and participated in field, camping and international trips as well as physical activities.
36The applicant used to visit friends and family, do activities with friends from church and go for walks. Since the accident, the applicant does not attend family functions as often, but still visits her cousins in person.
37The applicant’s grandson moved in with her after the accident and helps with cleaning, shopping and some personal care. Since the accident, the applicant also has a seat in the bath so she can bathe at her leisure, but she gets her hair done at a salon once a week because of her shoulder.
38The applicant’s church community or church family as she calls them, now assists her by making meals, providing transportation and assisting with self-care if her grandson is not available. Her meal preparation is now limited to heating up food others bring her though she testified she can prepare small meals like lunch or tea, and can prepare light meals like patties or chicken from the store.
39The applicant can only do light cleaning and cannot clean her kitchen, toilet or bathtub, change linens, sweep, mop, vacuum or remove garbage. Someone from her church family changes her bed once every two weeks. The applicant can partially dust and wash dishes. This information was confirmed by the occupational therapist who conducted an in-home assessment in January 2018 for the respondent. Although Dr. Chmiel reported that the applicant was independent in her daily activities, her report also stated that the applicant not only performed these tasks on a modified basis, but also that the applicant was limited to making only small meals and tea, helping with groceries, doing her banking and visiting with friends who come over. The applicant testified her grandson takes the garbage out, washes dishes, cooks, cleans and does the vacuuming. The applicant does her limited amount of laundry, and her grandson helps her hang it on hangers and put it away.
40The applicant is limited in her standing and sitting ability and has to take breaks. She has to use the handrail when using the stairs.
41The applicant used to go out daily but no longer does. She reported to the occupational therapist who did the in home assessment, Sarah Lee, that she was in the house every day and it haunts her. Ms. Lee reported that the applicant engages in her community activities. However, the applicant no longer actively volunteers at church nor is she a youth group leader. This upsets her because it was the most important thing to her. She attends a church service for 3 to 4 hours once a week, but her grandson drives her. She used to be at church for about 15 hours a week.
42The applicant’s activities are limited due to a combination of a sad mood due to not being able to participate in activities as she did before, as well as pain and poor sleep. The applicant has not resumed driving due to car phobia, which was confirmed by the IE conducted by Dr. Araujo de Sorkin on February 2, 2018. He also diagnosed the applicant with adjustment disorder with mixed anxiety and depression. He stated in his report that the applicant tried to minimize her psychological issues, but reported less energy, motivation, interest and appetite. She has nightmares with respect to the accident and has anxiety in the car. He recounted that the applicant was holding back tears when she told him that she told her church that she would not be participating in the international event this year. Despite this, he concluded that the applicant does not suffer a substantial inability to engage in her pre-accident activities.
43The applicant’s grandson, testified that although he had planned on coming to Canada for school, he had not planned on living with her. He only did so because of how her accident affected her. He testified that before he moved here, he used to talk to her bi-weekly for about an hour, and after the accident instead of always being active, working and moving, she sounded depressed, and needed someone to help her. He moved to Canada and in with her in January 2017.
44[Her grandson] testified he attended school from 8 a.m. to 4 or 6 p.m. from January to August 2017. In the evenings, he cooked, accompanied the applicant to get groceries and did housework, including vacuuming. On the weekends, he drove the applicant to church, where they would stay for 4 hours instead of the usual 8, arriving later because it took the applicant longer to get ready because of poor sleep. [Her grandson] further testified he had to curtail some of his own activities to help the applicant.
45[Her grandson] thought his schedule would be easier once he was finished school, but is now working and not able to work additional hours his employer offers him because he has to help the applicant. He has to drive her to appointments and to the grocery store even though it is within walking distance. He also takes Mondays off so he can cook for the week. His normal work week is 45 hours, but sometimes 25 hours, and on average is 30 to 35 hours. He testified it is only the applicant’s needs that prevent him from working more hours. He would work more if he could because he needs the money so he can return to school.
46The applicant’s evidence was also supported by two Disability Certificates completed by Dr. Dhaliwal in November 2016 and December 2017. He confirmed that the applicant was completely unable to live a normal life and was substantially disabled from performing her pre-accident housekeeping because of physical limitations, fear and anxiety. He further confirmed that the applicant’s pain was sufficient to prevent her from doing her cooking, cleaning and grocery shopping.
Analysis – Non-earner Benefit
47The test for entitlement to a non-earner benefit is a difficult one to meet because a person has to suffer a complete inability to carry on a normal life. Despite this, I find the applicant meets the test.
48The test does not require the applicant to be bedridden or totally incapable of doing anything. It requires that when one compares her pre-accident activities to her current activities, she is continuously prevented from engaging in substantially all her pre-accident activities. It is worth noting that in this case, the insurer’s own psychological examiner found the applicant to be minimizing her psychological issues.
49I find the applicant had a very active life before the accident. She worked at a daycare until age 69 and only retired 6 months before the accident, despite having rotator cuff tendonitis/frozen shoulder. She was not one to sit at home and went out daily. She was living independently with no help from anyone for her personal care, housekeeping and transportation.
50In comparison, after the accident she does not drive and her grandson, or someone from church, has to take her to all her appointments and to get groceries. Her grandson has to lift and carry the groceries for her. She does her own banking on line and Ms. Lee reported that she goes for a walk at times, but the ability to do these activities does not change the fact that the applicant is no longer independent in substantially all of her activities. While she can bathe by sitting in a bath chair, she cannot do her hair independently. She no longer does any real cooking of meals except to make a small lunch or a cup of tea. She relies on her grandson or her church family for meals that she can simply heat up. Her grandson does her housekeeping, and her church family changes her bed linens regularly.
51Most importantly, before the accident the applicant was very involved in her church and in its youth activities. Guided by Heath, I accord greater weight to these activities and her inability to do them because the applicant’s evidence was clear and uncontroverted that these activities were the most important thing she did before her accident, and she has not been able to resume them. Her uncontroverted evidence was that whereas she used to spend 15 hours a week at church including youth activities, she now is only there for 4 which is only to attend a service.
52The applicant’s inability to engage in her pre-accident activities stems not only from her pain but also from her poor sleep and poor motivation. Her inactivity contributes to her poor mood. As reported by Dr. Araujo de Sorkin, the applicant downplays her psychological issues, but he confirmed that she had less energy, motivation, interest and appetite and diagnosed her with adjustment disorder with mixed anxiety and depression. He reported that she has significant psychological difficulties. She also has fear and anxiety which prevent her from driving. She also continues to have nightmares about the accident, which interrupt her sleep.
53The bottom line is that the applicant was independent and now is dependent. She has gone from an active woman pre-accident to a woman who engages in some limited activities but who has not been able to return to substantially any of her pre-accident activities. I find that she is substantially unable to do her pre-accident activities on a continuous basis, and has been since the accident. I therefore find she is entitled to a weekly non-earner benefit.
Award
54The applicant made no submissions with respect to an award, and I find no evidence of any behaviour by the respondent that would entitle the applicant to one.
CONCLUSION
55I find the respondent is required to pay for the orthopaedic mattress, over toilet safety frame, anti-fatigue mat, bi-lateral railing and long-handled bath sponge as a result of section 38(11)2 of the Schedule based on my finding that they are reasonable and necessary as a result of the October 18, 2016 accident.
56I find the respondent is required to pay the applicant a non-earner benefit in the amount of $185 per week from April 19, 2017 to date and ongoing.
57The respondent is liable to pay interest in accordance with s. 51 of the Schedule on: (1) the overdue payment in respect of the items in the treatment plan in dispute; and (2) the overdue weekly amount of non-earner benefits.
Released: July 23, 2018
Dawn J. Kershaw, Vice-Chair
Footnotes
- Heath v. McLeod, 2009 ONCA 391