Tribunal File Number: 17-000518/AABS
Case Name: 17-000518 v Aviva General Insurance Company
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.N.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
Adjudicator: Anna Truong
Appearances: J.N., the Applicant
H. L., the Applicant’s husband
Adrian Lomaga, Counsel for the Applicant
Shivani Mehta, Counsel for the Respondent Kimberley Tye, Counsel for the Respondent
Korean Interpreter: Sunny (Syeong) Yoo
Court Reporter: Rose Veiega
Heard in-person on: August 23 and 24, 2017
OVERVIEW
1J.N. (the “Applicant”) was involved in an automobile accident on September 13, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). These benefits were denied by the Respondent.
2The applicant disagreed with the Respondent’s decision 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 in dispute.
PROCEDURAL ISSUE
3At the beginning of the hearing, the Respondent objected to the admission of the DriveLab report dated July 31, 2017, because it was served late contrary to the Tribunal’s Order and Rules of Practice.
4After hearing the submissions of both parties, I decided to admit the report, because I found it was relevant to the issues in dispute. Although it was served late, the Respondent has adequate time to review the report and the opportunity to make submissions on it since this is an in-person hearing. Furthermore, any potential prejudice to the Respondent can be remedied by the weight placed on the report.
ISSUES TO BE DECIDED
5The following are the issues to be decided:
Is the applicant entitled to a non-earner benefit at the rate of $185 per week from March 13, 2015, and ongoing?
Is the applicant entitled to the cost of an in-home assessment outlined in the assessment plan dated December 31, 2015, submitted by Nir Tamir in the amount of $1,593.95?
Is the applicant entitled to interest on any overdue payments?
Is the applicant entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”)?
RESULT
6Based on the totality of the evidence before me, I find the applicant is not entitled to a non-earner benefit or costs, but she is entitled to the cost of the in-home assessment plus interest.
ANALYSIS
7A two day in-person hearing was conducted. The applicant and expert witnesses testified at the hearing. I have considered all of the evidence led during the hearing and only summarized what I found relevant to my determination below.
1. Non-Earner Benefit
8The test for entitlement to a non-earner benefit is set out in section 12(1) of the Schedule. The Applicant must prove that she suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7)(a) of the Schedule states 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.
9Both the applicant and Respondent have submitted the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which outlines several principles for the determination of entitlement to a non-earner benefit. These principles include:
There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.
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 on the facts of the case.
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.
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.
“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.
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.
10I have noted these principles and used them to guide my analysis with respect to the applicant’s entitlement to a non-earner benefit.
Medical Evidence and Post-Accident Health Issues
11There is conflicting medical evidence with respect to the applicant’s functioning. I had concerns with both the applicant’s and Respondent’s reports. Since the onus is on the applicant to prove her entitlement, I will only comment on the applicant’s reports, because I did not rely on the Respondent’s reports in reaching my decision.
12In support of her claim for a non-earner benefit (NEB), the applicant submits two Disability Certificates (OCF-3): one dated September 17, 2014, by Dr. E. Choe, Chiropractor, and one dated April 16, 2017, by Dr. Ricardo Harris, Psychologist. Dr. Choe opined the Applicant met the NEB test for a duration of 5-8 weeks. Of note, Dr. Choe did not opine the Applicant was unable to be a caregiver despite acknowledging she was a caregiver to her mother in the form.
13In the Applicant’s Psychological Report dated February 1, 2017, Dr. Harris diagnosed her with (1) Somatic Symptom Disorder, with predominant pain, persistent, severe, (2) Major Depressive Disorder, single episode, severe, with anxious distress, (3) Post-traumatic Stress Disorder, chronic, and recommended psychological treatment. This report was completed to recommend treatment and not for the purpose of the NEB. However, in his OCF-3 dated April 16, 2017, Dr. Harris opined the Applicant met the NEB test. While I have no doubt the Applicant suffers from psychological difficulties as a result of the accident, it was not clear from Dr. Harris’ report these psychological difficulties were interfering with her functioning to the point of meeting the NEB test. Furthermore, the Applicant’s case for a NEB is largely based on physical pain preventing her from her activities, not psychological difficulties.
14From Dr. Harris’ report, the only sources of information listed were the psychometric testing and a clinical interview of the Applicant. Dr. Harris testified he heavily relied on the Applicant’s reporting and the psychometric test results and while not listed, he recalls reading the Respondent’s Psychological Report of Dr. Lee. While I have concerns about Dr. Harris’ methodology that arose from his testimony, my bigger concern is with respect to the Applicant’s reporting. Dr. Harris testified the Applicant failed to mention her post-accident travels, her work attempt in 2015 and her return to doing housework by December 2016. These are significant post-accident activities which were omitted by the Applicant. It is clear Dr. Harris did not have a complete picture of the Applicant’s life post-accident when he was completing his report. Therefore, I cannot place much weight on his opinion that the Applicant meets the NEB test.
15In the Applicant’s Occupational Therapy In-Home Assessment Report dated March 15, 2017, Nir Tamir recommended 17.16 hours a week of attendant care assistance, 6 hours a week of housekeeping assistance and 12 sessions of occupational therapy for hand therapy. Mr. Tamir’s report was also completed for the purpose of recommending treatment and not for the NEB. From Mr. Tamir’s report, the Applicant did not have any severe restrictions in her range of motion. Outside of her back, which had moderate restrictions, the Applicant had mild restriction to normal range of motion in the rest of her body. Mr. Tamir’s report does not support the Applicant’s physical functioning being restricted enough to meet the NEB test.
16Mr. Tamir’s treatment recommendations are largely based on the Applicant’s lack of grip strength. In his report, Mr. Tamir noted the Applicant’s grip strength in her left hand is 18 lbs and 11 lbs in her right hand. At the hearing, Mr. Tamir testified this grip strength meant the Applicant could not lift a cup full of water and would have a hard time opening jars and doors. Based on his testimony and report, Mr. Tamir’s conclusions with respect to the Applicant’s inability to complete her housekeeping and home maintenance tasks are based mainly on her limited grip strength. This is problematic, because there is a disagreement over causation of the Applicant’s grip strength.
17Over a year post-accident, the Applicant was diagnosed with trigger finger in her left hand. She is left hand dominant. The Applicant argued it is accident related. Therefore, the Applicant bears the onus of proving her left-handed trigger finger was caused by the accident. Based on the evidence before me, the Applicant has not proven her left handed trigger finger was caused by the accident.
18According to her medical records, the Applicant did not injure her hand in the accident. The first time the records show complaints about hand pain is in December 2015, when the Applicant saw Dr. Lee for left-handed finger pain and was diagnosed with trigger finger. This diagnosis came over a year post-accident. Dr. Lee’s records note her left-handed trigger finger resolved in February 2016. However, in his record dated November 7, 2016, Dr. Lee notes her left-handed trigger finger is present again. There is a further notation of left-handed trigger finger in Dr. Lee’s record dated December 12, 2016. Furthermore, in December 2016, the Applicant attended [the hospital], because of her left-handed finger pain. In the [hospital] progress notes, it was noted she had a six month history of left-handed finger pain which limited her movement, and it was further noted she “does a lot of housework on a regular basis”.
19At the hearing, the Applicant testified her left-handed trigger finger limited her movement and her ability to do housework, which is corroborated by the medical evidence. As with Dr. Harris, the Applicant did not advise Mr. Tamir of her work attempt, her post-accident travels, or her return to completing housework. Furthermore, Mr. Tamir was unaware of the Applicant’s trigger finger diagnosis as she did not disclose it and he did not have Dr. Lee’s clinical notes and records. Given that the Applicant did not provide Mr. Tamir with a full account of her post- accident activities, it is clear he did not have a complete picture of the Applicant’s life post-accident when he was completing his report. For this reason and others mentioned above, I cannot place much weight on his opinion that the Applicant meets the NEB test. Even without the causation issue, Mr. Tamir’s report does not support the Applicant’s entitlement to a NEB, because her physical functioning is not severely restricted as a result of her accident related injuries.
20The medical evidence as a whole does not demonstrate the Applicant is entitled to a NEB. The two reports the Applicant provided in support of her claim were problematic and the contents of the reports do not support the Applicant’s entitlement to a NEB. Furthermore, the Applicant failed both times to provide her assessors with an accurate depiction of her post-accident activities, so I cannot place much weight on their opinions about her entitlement to the NEB.
Evidentiary Inconsistencies
21The Applicant testified in a forth right manner. However, she was an unreliable witness. She often did not remember the timeline of events, or specific details when questioned. There were many unexplained or under-explained discrepancies and inconsistencies in the Applicant’s testimony and the rest of the evidence. These inconsistencies will be highlighted under each heading below.
22From the Applicant’s testimony and my review of the documents submitted, prior to the accident, the main components of the Applicant’s life consisted of attending church, running her bible group, being a caregiver to her elderly mother, being a homemaker, doing missionary work abroad and travelling.
23During closing, the Respondent argued the Applicant failed to lead evidence with respect to which activities were more important to her pre-accident. I agree. The Applicant did not lead any direct evidence as to what activities were more important to her pre-accident. This information was implicit and it would be improper for me to infer which activities were more important to the Applicant pre- accident. Thus, I cannot place more weight on any of the Applicant’s pre-accident activities and have treated them all equally. In any event, even without assigning more importance, my findings would have been the same based on the evidence.
Work and Housework
24There is a discrepancy on when and how long the Applicant was working post- accident. The Applicant testified she tried working for a month at a supermarket in 2015, but she was not able to continue. She worked 5 hours per day 4 days a week. She testified she stopped working due to pain and only worked for one month. However, in Dr. Lee’s clinical note dated January 19, 2016, he advised her to “consider decreased work hours” and then in his note dated August 18, 2016, Dr. Lee noted “works at this time”.
25When questioned about these notes from Dr. Lee, the Applicant initially could not explain the notations, and then she suggested Dr. Lee probably meant housework, because she was complaining about housework. I am not persuaded by the Applicant’s explanation. Dr. Lee is the Applicant’s family physician and he speaks Korean, so there is no language barrier. While I understand there is still a possibility of miscommunication even if they speak the same language, there is more than one notation referring to “work” instead of “housework”. It is highly unlikely Dr. Lee was mistaken more than once. Furthermore, these notes were created contemporaneously by an independent physician without any interest in this proceeding. The Applicant has proven to be an unreliable witness, so I would place more weight on Dr. Lee’s notes than the Applicant’s memory. Therefore, I find Dr. Lee’s notes were accurate and the Applicant reported to Dr. Lee that she was working at the time those notes were made.
26The Applicant’s work status became more suspect, when it became apparent during the hearing the Applicant did not disclose her work attempt with any of the assessors. When questioned about why she did not tell her assessors about her return to work attempt, the Applicant either could not remember, or she said the assessor did not ask, so she did not tell them about it. While possible, I find it unlikely all her assessors did not question her about her employment status post- accident, especially when both of her assessors testified they took a clinical interview and both of their reports list her work experience.
27With respect to housework, the Applicant testified she returned to doing housework as of December 2016 and this is corroborated by the [hospital] progress notes, which states she “does a lot of housework on a regular basis”. Therefore, based on the evidence before me, I find the Applicant returned to completing housework no later than December 2016.
Caregiving
28The Applicant testified pre-accident, she was her elderly mother’s primary caregiver. The Applicant testified she used to help her mother every day from 8:30 a.m. to 10:00 p.m. A typical day with her mother consisted of doing her laundry, cooking, cleaning, bathing, driving her to appointments, reading the bible with her and keeping her company watching television. When questioned, the Applicant testified she spent most of the time keeping her mother company, either reading the bible or watching TV together.
29The Applicant testified after the accident, she was no longer able to care for her mother and her younger sister moved in with her mother to provide care. She further testified she stopped visiting her mother after the accident, because her mother told her not to come and she did want to interfere with her sister’s relationship with her mother. When directly questioned, the Applicant testified she could still sit with her mother to watch TV and read the bible, but did not want to interfere with her sister’s relationship with her mother.
30As mentioned above, the Applicant returned to completing housework regularly as of December 2016, so she was no longer prevented from doing housework for her mother. Therefore, other than driving, the Applicant was able to perform almost all of the caregiving tasks she did pre-accident.
31During the hearing, the Applicant led evidence with respect to her inability to drive post-accident. I accept the Applicant has not returned to driving post-accident. However, the inability drive is not enough to meet the NEB test, so for brevity sake, I will not comment further on this.
Church and Bible Group
32The Applicant testified pre-accident, she would attend an one hour and 30 minutes church service every Sunday and subsequent to the service, she would lead a bible group, which would typically last anywhere between twenty minutes to one hour and 30 minutes. The Applicant testified post-accident, she continued to attend church service every Sunday after missing church initially for the first month. The Applicant also continued to lead her bible group, but she testified the sessions were shortened to 20-30 minutes. Her testimony is inconsistent with the surveillance, which shows her staying longer. However, even if I gave the Applicant the benefit of the doubt and assumed the surveillance showed “good days”, by her own admission, the Applicant continues to attend church and lead her bible group post-accident. Therefore, there is no inability to do these activities post-accident.
Missionary Work and Travelling
33The Applicant testified she used to travel 2-3 times per year for missionary work pre-accident. She further testified post-accident, she travelled to Korea and Vietnam twice, to India once and 3-4 times to the United States. Korea and the United States were leisure travel. The Applicant testified post-accident, she had to reduce the number of hours she spent per day doing missionary work. She testified she used to do 5-6 hours of missionary work every day, but post-accident, the most she could do is one hour in the morning and one hour in the afternoon for 2-3 days per week. The Applicant further testified she had to seek treatment during her missions to control her pain.
34Despite experiencing difficulty with respect to her travels and missionary work, the Applicant continued to travel and go on missions. While the Applicant testified she reduced the number of hours she actively participated in her missionary work, she adduced no evidence other than her testimony to support this. To be clear, I am not stating categorically an Applicant’s testimony is insufficient to assert a difference in functioning. However, in this matter, I have already found the Applicant to be an unreliable witness, so I cannot place much weight on the Applicant’s testimony alone.
35Furthermore, there is a logical inconsistency I cannot reconcile. If the Applicant was experiencing as much difficulty as she alleges with respect to her missionary work, why would she continue to go? In fact, outside of her church arranged missions, she even arranged an independent trip to Vietnam with just her husband and stayed there for 2 months and 2 days. I find this to be another evidentiary inconsistency.
36Additionally, as with her housework and work attempt, the Applicant failed to report her travels and missions to her assessors. When questioned about this, the Applicant failed to give a satisfactory answer. There appears to be a pattern of selective reporting with respect to her activities post-accident to the assessors.
Failure to Meet the Burden of Proof
37Based on her testimony alone, the Applicant does not meet the NEB test. She continues to attend church and run bible study. She continues to travel and do missionary work. She has gone back to doing her housework. Overall, the evidence does not paint a picture of someone who is continuously prevented from engaging in substantially all of her pre-accident activities. Furthermore, the medical evidence does not support her entitlement to a NEB.
38The NEB test is one of the most stringent tests under the Schedule. Unfortunately, in this case, the Applicant has failed to prove on a balance of probabilities she meets the NEB test. While there is no doubt the Applicant suffered injuries and impairments as a result of the accident, these impairments do not continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Therefore, she is not entitled to a NEB.
2. Cost of the In-Home Assessment
39Section 21(1)(4) of the Schedule provides an insurer shall pay for incurred reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose.
40As listed in the report, the purpose of the in-home assessment was to determine the Applicant’s attendant care needs and Mr. Tamir testified the purpose of the assessment was for attendant care benefits. The assessment has been incurred and the report dated March 15, 2017, with an attached Assessment of Attendant Care Needs Form (Form 1), was submitted as evidence at this hearing.
41The Respondent initially denied this assessment, because the Applicant was being treated under the Minor Injury Guidelines (the MIG). However, the Applicant has since been removed from the MIG.
42During its closing, the Respondent raised the issue of non-attendance at an IE with respect to this assessment. There are two issues with this. First, if the Respondent had intended to rely on non-attendance at an IE, it should have raised this issue as a preliminary issue at the Case Conference. Secondly, the Respondent led no evidence with respect to the Applicant’s non-attendance. It was only brought up during closing arguments. Therefore, I will not comment further on this argument.
43Section 21(1)(4) is clear, if an assessment for attendant care needs is prepared by an OT or a RN and reasonable fees were charged and incurred, the assessment is payable. The assessment in this case was prepared by Mr. Tamir, who is an occupational therapist, for the purpose of completing the Form 1. The assessment also has been incurred and I do not find the fees unreasonable. While I had some concerns with Mr. Tamir’s report, it is not a relevant factor to the determination of whether or not the assessment is payable. Based on the evidence before me, I find the Applicant is entitled to the in-home assessment and it is payable pursuant to section 21(1)(4) of the Schedule.
3. Interest
44Since the in-home assessment is payable, the Applicant is entitled to all applicable interest.
4. Costs
45Costs were not an issue raised at the Case Conference, but it was raised by the applicant in her closing submissions, so I will address it. The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs, if they believe that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 provides that a request for costs can be made any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
46The Applicant argued the Respondent should not be able to outspend its insured to increase the odds of success and it is unreasonable behaviour to spend more defending the claim than the claim is worth. She noted the Respondent spent over $15,000 for surveillance plus the cost of medical witnesses and two counsels for the in-person hearing. The total the Respondent spent defending this claim is more than this claim is worth.
47I am not persuaded by this argument. The amount of money the Respondent spends defending a claim is irrelevant to the award of costs. While it may be a questionable financial decision to spend more defending the claim than it is worth, the Respondent is entitled to spend as it sees fit. Furthermore, not all these expenses were incurred for the purposes of defending the claim.
48The Applicant further argued the Respondent’s decision to not call Dr. Lee and Ms. Feinstein was communicated after she had already prepared questions for them. Furthermore, the Applicant had to obtain and serve Ms. Feinstein with a summons last minute incurring additional costs. Therefore, costs should be awarded.
49With respect to the Respondent’s decision to not call Dr. Lee and Ms. Feinstein, the Tribunal’s Order dated May 16, 2017 states “it is the present intention of the parties to call the following witnesses . . .” [Emphasis added]. The witness list is not binding and does not use mandatory language. While I understand the Applicant’s frustration, the Respondent did not breach the Order.
50The purpose of Rule 19.1 is clear: to deter conduct by parties that is unreasonable, frivolous, vexatious, or in bad faith. This is a high bar for conduct to attract a cost award which is an exceptional remedy. “Unreasonableness” must be read in context with the rest of the rule, and in this matter, while I agree the Respondent should have given the Applicant notice of its intention earlier, this behaviour alone does not meet the bar for costs. Accordingly, the Applicant is not entitled to costs.
CONCLUSION
51For the reasons outlined above, I find the Applicant is not entitled to a non-earner benefit or costs, but she is entitled to the in-home assessment and all applicable interest.
Released: February 06, 2018
Anna Truong, Adjudicator