J.E.C.L. v. Allstate Insurance Company of Canada, 2018 CanLII 130853

Licence Appeal Tribunal

Tribunal File Number: 17-006909/AABS

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.E.C.L.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES

Counsel for the Applicant: Stefan Juzkiw

Counsel for the Respondent: Susannah Margison

Interpreter: Olivia Garcia (Spanish)

In-Person Hearing: November 5-6, 2018

OVERVIEW

1The applicant ("J.L.") was injured in a motor vehicle accident on May 1, 2015 and claims that as a result of the accident, he sustained physical injuries to his neck, shoulder, back, arm and knee. He also claims he sustained psychological injuries, which have resulted in memory loss, irritability, anxiety, stress and depression. J.L. sought benefits from the respondent, Allstate Insurance Company ("Allstate"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule").

2Allstate denied J.L.'s claim for Non-Earner Benefits ("NEBs") on the basis that he does not suffer from a complete inability to carry on a normal life as required by the Schedule and also denied a chronic pain assessment on the basis that it is not reasonable and necessary. J.L. disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for dispute resolution.

3A case conference was held but the parties were unable to come to a resolution and proceeded to an in-person hearing.

ISSUES IN DISPUTE

4The following are the issues to be decided, as per the Case Conference Order dated March 7, 2018:

1. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from November 5, 2015 to date and ongoing?

2. Is the applicant entitled to payment for the cost of examinations in the amount of $1,765.20 for a chronic pain assessment, recommended by Promed Rehabilitation Centre in a treatment plan dated July 5, 2017, and denied by the respondent on July 20, 2017?

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

RESULT

5I find that J.L. is not entitled to NEBs for the period in dispute as he has not demonstrated that he has a complete inability to carry on a normal life as a result of the accident.

6I find that J.L. is entitled to the cost of the chronic pain assessment, as it is reasonable and necessary.

7Accordingly, J.L. is entitled to interest on any overdue benefits.

ANALYSIS

Non-Earner Benefits

8In order to receive NEBs, J.L. must prove that he suffers a complete inability to carry on a normal life as a result of the accident.² A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.³ On the evidence, I find that J.L. is not entitled to NEBs for the period in dispute.

9The seminal authority of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, requires an assessment of the applicant's pre-accident activities and life circumstances over a reasonable period of time prior to the accident.⁴ The evidence led concerning J.L.'s pre-accident activities and how his impairments as a result of the accident have led to a complete inability to carry on with them post-accident was, in my view, unpersuasive. Frankly, I found that J.L.'s life and his day-to-day activities remain largely unchanged and that the explanations he and his wife provided for how he allotted his time were so vague that it was not helpful to the analysis. While caring for his autistic daughter, attending at church and reading were identified as activities that J.L. values highly, there was no explanation provided as to how much time he spent on each of those activities pre-accident. Instead, J.L. stated that he did these activities before the accident, but that he does not do them anymore, or simply does them less. When asked about his day-to-day activities, J.L. struggled to identify what he does each day, just that he cannot do anything.

10During the hearing, J.L. and his wife's testimony focused on his pain—primarily his upper, middle and lower back pain—and how this pain, when combined with his psychological impairments, impedes his day-to-day living. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.⁵ On J.L.'s testimony of his daily activities, I find that he does suffer from pain, as there is evidence in the documents that he reports the pain can rise to 8-9/10 on the pain scale and that he treats it primarily with pain medications, such as Naproxen, Percocet and OxyContin. However, although I think it is evident that J.L. experiences pain, I find on the evidence and testimony that his pain does not practically prevent him from the majority of his independent self-care tasks or engagement in his daily activities. For example, despite J.L.'s explanation that he needs help from his wife to wash parts of his back that he cannot reach and that he needs help putting on his socks and shoes sometimes, it became apparent during the hearing that many of his reported pre-accident activities remain unchanged or are only slightly reduced post-accident.

11An "Activities of Daily Living Checklist," completed on July 17, 2017, was submitted into evidence by J.L. However, I find that this document is not particularly helpful to J.L.'s position that he has a complete inability to carry on a normal life. In the checklist, J.L. indicates that he can complete the following tasks independently: dressing, feeding, toileting, carrying things and taking public transportation. J.L. also indicates that he can partially complete the following tasks independently: standing and sitting, bending, climbing stairs, grocery shopping, driving, being a passenger and bathing.

12Further, the medical evidence Allstate provided paints a similar picture of J.L.'s capabilities. Allstate conducted several assessments of J.L., including Insurer's Examinations with accompanying reports related to occupational therapy, physiatry and psychology as well as a multidisciplinary assessment. The reports were consistent in their findings: J.L. suffers from pain and some psychological symptoms, but he does not suffer from a complete inability to carry on a normal life. J.L. failed to submit competing medical reports or have medical experts attend at the hearing to provide information on his functional impairments, his neurological and psychological states or what exactly is causing him to have a complete inability to carry on a normal life.⁶

13Additionally, Allstate's Physiatry Report indicates that J.L.'s quality of range of motion—an issue that J.L. argues is contributing to his complete inability to carry on a normal life—was within normal limits and the report diagnosed J.L. with only WAD- 2, post-accident headaches and lumbar spine sprain/strain. J.L. did submit over 60 pages of MRI results of his head and knee from February 2018. However, again, no medical professionals were called at the hearing to explain to the Tribunal what the images reveal or their relevance to the proceeding. Without this context, the Tribunal can assign no weight otherwise.

14This oversight is especially relevant because in closing submissions, J.L. argued that his psychological impairments comprise a significant portion of his inability to carry on a normal life. The only medical report submitted in support of J.L.'s psychological impairments was a Psychological Consultation Report by Dr. Vitelli (as well as various Progress Reports supervised by Dr. Vitelli). However, again, J.L. did not make Dr. Vitelli available at the hearing for cross-examination, so his report can only be challenged by Allstate's competing psychological report by Dr. El-Hage, which I prefer, as I find it is a more objective and comprehensive assessment. Dr. El-Hage indicated that J.L.'s psychological symptoms do require treatment beyond the Minor Injury Guideline, diagnosing him with Adjustment Disorder with Mixed Anxiety and Depressed Mood. However, she also indicated that from a psychological perspective, J.L.'s symptoms were not of a severity to result in functional limitation or restrictions to his daily living and that, from a psychological perspective, he does not suffer from a complete inability to carry on a normal life. Dr. El-Hage also remarked in her report that J.L. "appears to be highly pain-focused and pain oriented in a way that likely results in self-limiting behaviours."⁷ In my view, this quotation is compelling, as during the hearing, I found that J.L.'s responses and general attitude towards his condition and life-state reflected this remark.

15On the evidence and as submitted by Allstate, I also find causation problematic. I find that J.L. has failed to prove that his impairments were caused by the subject accident. There is consistent reference in the medical documentation and in the testimony provided at the hearing that J.L. suffered a significant workplace accident several years before the subject motor vehicle accident. As a result of the workplace accident, he has received ODSP and a federal disability tax credit. In the clinical notes and records provided, there is consistent reference to impairments that predate J.L.'s current accident-related impairments, for example: there is evidence of a knee injury, back and elbow pain and usage of a cane as far back as 2012. Additionally, there are recurring prescriptions for pain medication, complaints of dizziness and depression, sleeping difficulties, stomach pain and anxiety, all of which are also current complaints from J.L. As a result, it is difficult to apportion which injuries and impairments came as a result of the subject accident and which are the result of the initial workplace accident. J.L. provided little to no evidence to support his contention that his injuries were as a result of the subject accident.

16Furthermore, I find that there are significant gaps in J.L.'s reporting to his family doctor of his accident-related impairments. The first mention of the accident occurs nearly two months after, on July 29, 2015. J.L.'s next visit occurs on December 10, 2015, where no mention of the accident or accident-related impairments is made. There is no further mention of the motor vehicle accident until May 2018, well after J.L.'s application to the Tribunal was filed. Similarly, between December 2015 and May 2018, the clinical notes and records make no mention of J.L.'s neck and back pain, there is no indication of memory or concentration issues and there is no reference to emotional difficulties, related to the accident or otherwise. J.L. is never referred for neurological or psychological treatment by his family doctor. While not determinative, these inconsistencies, in my view, undermine J.L.'s claim that he has a complete inability to carry on a normal life as a result of the accident.

17For these reasons, I find that J.L. does not suffer from a complete inability to carry on a normal life as a result of the accident and is therefore not entitled to NEB's for the period in dispute.

Chronic Pain Assessment

18Although I find that J.L. does not have a complete inability to carry on a normal life, I do find on the evidence that J.L. is entitled to the cost of the Chronic Pain Assessment, as I find that his reports of pain are consistent and credible and therefore warrant a professional assessment.

19In order for J.L. to receive payment for the chronic pain assessment under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to ss. 14-17. I find that the chronic pain assessment is reasonable and necessary because J.L. continues to experience pain post-accident (self-reporting at 9/10 on the pain scale), his pain is continuous (he has been taking pain medication consistently since the accident) and that it is reasonable for a medical professional to explore whether his pain has become chronic in nature as a result of the accident (as he argues that his psychological impairments are a contributing cause of his physical pain). Pain identification, management and reduction are legitimate goals for a treatment plan. On review of the OCF-18, I find these goals listed in Part 9 and in the additional comments section.

20As a result, I find the cost of the chronic pain assessment is an appropriate and proportional one to address, or at minimum, identify the source of, J.L.'s pain and beneficial treatment.

Interest

21As I have found that J.L. is entitled to the chronic pain assessment, it follows that he is entitled to interest on the overdue benefit, pursuant to s. 51 of the Schedule.

CONCLUSION

22For these reasons, J.L. is not entitled to NEB's for the period in dispute. J.L. is entitled to the cost of the chronic pain assessment and applicable interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 ["Heath"].
3. 3O. Reg. 34/10, at s. 3(7)(a).
4. 4Ibid.
5. 5Heath, supra note 2 at para 50.
6. 6On the eve of the hearing, J.L. did opt to call Richard Benjamin Bishop from Community Functionality Facilitation, Inc. as his sole arm's-length witness. Mr. Bishop was called to provide testimony on J.L.'s activities of daily living, his functionality and to speak to a letter Mr. Bishop prepared in support of J.L.'s Disability Tax Credit renewal. In this letter, Mr. Bishop details the documentation he reviewed and concludes that J.L. "has a marked deficit in his activities of daily living." Despite an objection from the respondent, the letter and testimony were admitted. However, as Mr. Bishop is not a medical professional, was not tendered as an expert by the applicant and could not speak to J.L.'s pre-accident functionality, his letter and limited scope testimony, as a lay-witness, were afforded little to no weight.
7. 7Respondent's Book of Documents, Tab 5C, at 131.