Tribunal File Number: 16-003108/AABS
Case Name: 16-003108 v Certas Direct Insurance Company
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:
[The Applicant]
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Khizer Anwar
For the Applicant: Deva Devendran and Mary Selvanathan
For the Respondent: Susannah K. Margison
Tamil Interpreter: Jeyasingh David
HEARD: July 11, 2017 and July 12, 2017
OVERVIEW
1[The applicant] was injured in an automobile accident on March 20, 2014 (“the accident”), and sought benefits from her auto insurer (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
2The applicant requested funding for the following to the respondent: 1) non-earner benefits; 2) attendant care benefits; and 3) chronic pain assessment, via a treatment and assessment plan (“OCF-18”). The respondent denied funding for all the requests, as it held that the requests were not reasonable and necessary.
3The applicant disagreed with the respondent’s denial and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
4The parties participated in a case conference but were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
Preliminary Issue:
5Is the applicant barred from proceeding with issue # 3 due to alleged non-compliance with section 44 of the Schedule, for failing to attend the scheduled assessments with Dr. Alikhan, general practitioner and Dr. Koepfler, psychologist, on November 10, 2016 and November 14, 2016, respectively?
Issues in Dispute:
6The issues in dispute identified by the parties in their submissions and to be decided are:
Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of March 7, 2015 to date and ongoing?
Is the applicant entitled to attendant care benefits at the rate of $629.15 per month from March 20, 2014 to March 20, 2016?
Is the applicant entitled to payments for the cost of examination in the amount of $2,260.00 for a chronic pain assessment, recommended by Mount Sinai Hospital in a treatment plan dated September 26, 2016, and denied by the respondent on October 4, 2016?
Is the applicant entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUES
A) Conflict of Interest
The Applicant’s Position
7The applicant raised a conflict of interest issue at the outset of the hearing, due to the presence of Ms. Stephanie Fo, a legal assistant and law clerk, of the respondent’s office. Ms. Fo had previously worked at the applicant’s legal representative’s office from May 2015 to January 2016. During this time, amongst other matters, Ms. Fo worked on the applicant’s file. Therefore, the applicant was concerned that she possessed inside information, which may prejudice her in the proceeding.
8As a result, the applicant requested that I order a new hearing with a new legal representative for the respondent.
The Respondent’s Position
9The respondent submitted that Ms. Fo had corresponded with the applicant’s legal representatives regularly since the respondent’s law firm was retained in October 2016, in respect of this matter. The applicant has had ample opportunity to raise the conflict of interest issue but she didn’t.
10In addition, the respondent contended that Ms. Fo worked at the opposing counsel’s office significantly prior to the application being filed with the Tribunal, which is vital. She did not provide any information to the respondent, which it could not have ordinarily obtained through other resources.
11Notwithstanding its submissions, the respondent did offer to remove Ms. Fo for the duration of the hearing, if necessary.
Finding
12Based on the submissions, I agreed with the respondent’s argument that Ms. Fo had worked at the applicant’s legal representative’s office significantly prior to the application being filed. I did not find a conflict of interest and any resulting prejudice to the applicant. Hence, I rejected the applicant’s request to order a new hearing. The hearing was to proceed as planned.
B) Is the applicant barred from proceeding with issue # 3 due to alleged non-compliance with section 44 of the Schedule, for failing to attend the scheduled assessments with Dr. Alikhan, general practitioner and Dr. Koepfler, psychologist, on November 10, 2016 and November 14, 2016, respectively?
The Respondent’s Position
13The respondent raises a preliminary issue on multiple counts with respect to the disputed issue # 3, which relates to the treatment plan submitted by the applicant for a chronic pain assessment.
14Firstly, the respondent argues that the applicant brought this issue to the Tribunal, prematurely, as it filed this issue with the Tribunal without giving the respondent an opportunity to consider her request and determine whether the treatment plan is reasonable and necessary. The respondent never denied the treatment plan prior to the applicant filing this appeal with the Tribunal. Therefore, the Tribunal should not consider this treatment plan.
15Secondly, the respondent contends that the applicant is in non-compliance with section 44 because she failed to attend multiple s. 44 assessments, the details of which are as follows:
Notice of Examination requesting a s. 44 exam for November 10, 2016 with Dr. Alikhan – letter confirming non-attendance sent to the applicant, dated November 12, 2016;
Notice of Examination requesting a s. 44 exam for December 15, 2016 with Dr. Alikhan – the applicant’s son advised Seiden Health on December 6, 2016 and December 12, 2016 respectively that the applicant will not be attending the examination. The notes provided by the respondent also reveal that the son threatened to call the police if anyone showed at their doorstep to pick his mother up. A letter dated December 17, 2016, confirming her non-attendance was sent to the applicant, also explaining the implications of non-attendance under s.55 of the Statutory Accident Benefits Schedule (the “Schedule”).
Notice of Examination requesting a s. 44 exam for January 18, 2017 with Nikolaos Harmantas – the examination had to be cancelled as the applicant’s son advised that the applicant will not be attending. A letter confirming non-attendance, dated January 19, 2017, was sent to the applicant.
Notice of Examination requesting a s. 44 exam for January 30, 2017 with Dr. Louise Koepfler – this was requested based on the function and pain program report recommending an interdisciplinary assessment of the applicant. The examination had to be cancelled as the applicant’s son advised that the applicant would not be attending.
16The respondent further submits that the applicant’s legal representative agreed at the case conference to make the applicant available for these assessments and rescheduling the examinations. To date, it has not happened.
Case Law
17The respondent relies on the following preceding decisions of this Tribunal to support its position, all of which I have reviewed and considered:
W.P. v. Aviva; 2016, Tribunal File No. 16-000693/AABS
M.B. v. Aviva; 2017, Tribunal File No. 16-002325/AABS
S.S. v. Aviva; 2017, Tribunal File No. 16-002772/AABS
The Applicant’s Position
18The applicant’s argument is two-fold. The applicant contends that she is not in non-compliance because:
the respondent has already had the opportunity to address the MIG and NEB issue, and subsequently, had stopped the benefits. Hence, the requested s. 44 assessment with medical reasons of “assessing for MIG and NEB” was redundant and not warranted; and
the respondent failed to provide proper reasoning for the examination in its notice, which the insurer is obligated to do in accordance with section 44.
19The applicant submits case law from the Financial Services Commission of Ontario (FSCO) to support her position. However, I’m not bound by the FSCO case law.
The Respondent’s Reply
20The respondent furthers its original position and argues that even if the notice given by the insurer was defective, which it unequivocally denies that it was, it would be a moot point here because the insurer was never given the opportunity to consider this treatment plan on a good faith basis before it came before the Tribunal. There was no issue in dispute for the Tribunal to consider because the applicant included this treatment plan in the appeal “in anticipation” of a denial, not due to a real denial by the respondent.
21In the alternative, the respondent submits that it properly prompted a section 44 assessment after receiving new medical evidence, disability certificate (latest one received in August 2016, two years after receiving the one prior to this one) and a new treatment plan requesting a chronic pain assessment.
22It is the respondent’s position that a lengthy period of time (approximately two years) had passed between the last two in-person assessments were performed by Dr. Hanna and Dr. Koepfler. Hence, a fresh section 44 assessment to understand the applicant’s medical condition in light of the new medical evidence and request for funding submitted by her is proper and reasonable.
Finding
23In light of the foregoing, I find that the applicant is barred from proceeding with issue # 3, namely the issue of chronic pain assessment, for the following reasons:
i) Bringing the issue before the Tribunal prematurely
24The applicant deprived the respondent of an opportunity to assess the treatment plan properly and thereafter provide its position and reasoning for that position. In the absence of a denial from the insurer prior to filing the applicant filing the appeal with the Tribunal, I am uncertain of what the dispute with this issue entails. As result, I am unable to find the bases on which I can proceed to deliberate the issue and provide a finding.
ii) Applicant was non-compliant with section 44 of the Schedule
25In the alternative, if I am wrong with my finding above, I find that the applicant was non-compliant with the legislative requirements under section 44 of the Schedule. Therefore, the applicant is barred from proceeding with issue # 3 pursuant to s. 55 of the Schedule. As a result, I need not determine the reasonableness and necessity of the treatment plan in my analysis in the coming sections.
iii) S.44 assessment was reasonable
26I reject the applicant’s position that the section 44 assessment was redundant, excessive and unnecessary. I find that the assessment was a reasonable response to submission of a chronic pain assessment, as well as a disability certificate, two years after the previous one was submitted by the applicant. As well, considering the last independent medical examinations were conducted in 2014, wanting to obtain a more recent evaluation of the applicant’s medical conditions before providing a response to the applicant’s request is reasonable.
iv) Medical reasons contained in the notice were sufficient
27I am satisfied with the respondent noting, “to review additional medical records and provide opinion on NEB and MIG” as the reasons for the section 44 assessment, in response to a treatment plan for chronic pain assessment, recommendations for the applicant to participate in interdisciplinary treatment and a disability certificate submitted two years after the last one was submitted.
28Hence, I find the medical reasons for assessment provided by the respondent in the notices to be sufficient. The respondent has the responsibility to continuously adjust the applicant’s file in good faith, particularly when presented with new medical evidence. Notwithstanding the fact that the respondent had discontinued payments for NEBs, the applicant’s entitlement to these benefits is ongoing and subject to review in light of new medical evidence.
29Keeping this in mind, the results of a chronic pain assessment could then trigger the applicant’s entitlement to NEBs. With respect to MIG, since the applicant was removed from the MIG at or after the case conference, its appearance as a medical reason is acceptable to me.
v) The applicant did not display appropriate reasons to not attend.
30There is no evidence before me that speaks to the reasons for the applicant’s non-attendance, other than the applicant’s son suggesting on the phone that the applicant will not be attending the original and rescheduled assessments.
31Since I’ve found above that the notice provided by the respondent was not deficient, and I have no other reason(s) from the applicant for non-attendance, I find that the applicant did not display or provide appropriate reasons for non-attendance for the s. 44 examination.
BACKGROUND
Pre-accident life: Accident-related injuries & Post-accident life and health
Pre-Accident Life
32The applicant was 63-years old at the time of the accident. She has two children, a son who lives with her and a daughter who is married. The applicant lives with her husband, son and mother-in-law.
33According to the applicant, prior to the accident the applicant’s activities of daily living included the following:
Personal care;
Housekeeping and home maintenance – cooking, sweeping, cleaning, washing dishes and cooking for and bathing mother-in-law;
Social outings: spending time and going for walks with her husband, visiting her siblings, socializing with friends and attending parties and weddings;
Religious activities: attending temple regularly and participating actively in religious activities; and
Recreational: stitching and sewing.
34The applicant did not provide information about how much time each of these activities occupied during a typical day, week, or month prior to the accident. The time commitment for some of the activities may be inferred to some extent; however, I am unable to determine what the time commitments of each activity were with any specificity. This will be important in the third stage of the analysis.
Pre-existing Medical Conditions / Injuries
35The applicant’s pre-existing history is largely uncontested and includes the following conditions:
Rheumatoid Arthritis
Left Knee Pain
Pain in hands and feet
Pain in back
Partial tear of supraspinatus of left shoulder
Accident-related injuries
36According to the applicant’s testimony and the accompanying medical documents, the applicant sustained the following physical impairment as a result of the accident:
Sprain/strain of cervical, lumbar and thoracic spine;
Sprain/strain of shoulder girdle, thorax, chest and legs;
Post-traumatic headaches and dizziness; and
Pain in legs, shoulders, mid and low back and back of the neck.
37With respect to psychological injuries, the applicant was diagnosed with the following:
Somatic symptom disorder, persistent, severe with predominant pain with secondary depressive symptoms; and
Post-traumatic stress disorder with vehicular anxiety.
Post-Accident Health & Life after the accident
38The applicant testified, with support of expert and medical reports that since the accident, she has been unable to engage in all her pre-accident activities and is completely unable to perform her activities of daily living and lead a normal life, as she did prior to the accident.
39In considering the evidence related to the applicant’s life after the accident, I must determine whether the impairments sustained as a result of the accident continuously prevent the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident. For the reasons to follow, I find that the applicant has not met her onus in establishing his impairment meets this test.
40In reaching my decision on the issues in dispute, I will analyze the submissions and evidence related to them in lieu of these three interrelated parts of the applicant’s life.
ISSUES IN DISPUTE
Issue # 1: Is the applicant entitled to the payment of non-earner benefits (NEBs) in the amount of $185.00 weekly?
The law
41In order to qualify for a non-earner benefit, the applicant must prove that, as a result of the accident, she suffers from a complete inability to carry on a normal life within 104 weeks of the accident. See s. 12(1) of the Schedule. In turn, the applicant suffers from complete inability if he/she sustains an impairment that continuously prevents him/her from engaging in substantially all of the activities in which he/she ordinarily engaged before the accident. See s. 3(7)(a) of the Schedule.
42The Court of Appeal in Heath v. Economical Mutual Insurance Company (2009) 5 O.R. (3d) 785 (C.A.) outlined the principles for the determination of entitlement to a non-earner benefit. These principles reaffirmed the provisions of the Schedule cited above and include the following:
(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, and the duration of that period will depend on 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, such that 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; and,
(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.
Position of the Parties
43The applicant submits that due to accident-related injuries, she suffers from complete inability to carry on normal living and pre-accident activities. She further submits that the resulting impairments prevent her from engaging in substantially all of the activities in which she ordinarily engaged prior to the accident.
44The respondent puts forward evidence to contend that the applicant suffers from pre-existing medical conditions, which are the cause of her limitations, and not accident-related injuries.
45For reasons to follow at the end of the next section, I find that the applicant did not meet her onus of proving entitlement to NEBs.
THE APPLICANT’S EVIDENCE
The Applicant’s testimony
46The applicant testified that due to accident-related injuries, she is unable to perform her pre-accident activities as regularly as she used to prior to the accident. In particular, the injuries have impaired her in the following ways: a) she doesn’t cook at all; b) she doesn’t care for her mother-in-law as much as she did prior to the accident; c) going to parties and functions is minimal; d) she does not visit her brothers; e) she does not go out for walks; and e) she doesn’t visit the temple as frequently as she did prior to the accident.
The Applicant’s son’s testimony
47According to [the applicant’s son], prior to the accident, a typical day in the applicant’s life entailed cooking for the entire house; taking care of all his grandmother’s needs because she is very old (95 years old); cleaning the house; shopping; visiting relatives weekly, watching television; going for walks and going to temple twice a week.
48[The applicant’s son] explained that since the accident, the applicant has been unable to perform any of the pre-accident activities of daily living, including cooking, doing her hair, adjusting the showerhead, calling her siblings (before she used to call, now they called her instead) and making her bed in the morning. As a result, she needs her son and daughter’s help to complete all of her pre-accident activities.
Medical Evidence
1) Dr. Judith Pilowsky
49Dr. Judith Pilowsky, a psychologist, conducted a psychological assessment of the applicant on November 6, 2015. The assessment combined psycho-diagnostic testing and subjective reporting of the applicant via interview questions posed to her. The psycho-diagnostic testing included the Beck Depression Inventory-II test (BDI-II), the Beck Anxiety Inventory test (BAI) and the pain catastrophizing scale test (PCS).
50Based on her assessment findings and the diagnostic criteria of the DSM-5, Dr. Pilowsky diagnosed the applicant with: 1) post-traumatic stress disorder (PTSD) with vehicular anxiety; and 2) somatic symptom disorder, persistent, severe with predominant pain with secondary depressive symptoms. Dr. Pilowsky’s recommendations included 12 sessions of psychotherapy to assist the applicant in overcoming her psychological impairments namely lack of participation in family, social, religious and recreational activities, caused by accident-related injuries.
2) Dr. Pilowsky’s Reassessment
51The applicant was reassessed by Dr. Pilowsky on June 8, 2017, during which she reviewed the paper review expert reports commissioned by the respondent. As well, in addition to the tests administered in the first assessment, Dr. Pilowsky also administered two new tests to assess the validity of the applicant’s responses: 1) Miller Forensic Assessment of Symptoms (M-FAST); and 2) Pain Patient Profile (P3).
52Based on her findings, Dr. Pilowsky confirmed her diagnosis from the original assessment and further concluded that the applicant is not malingering her symptoms. She did not, however, provide the scores the applicant attained on the validity tests.
53Dr. Pilowsky opined that from a psychological perspective, the applicant suffers from a complete inability to carry on a normal life and is unable to return to her pre-accident activities. With respect to attendant care needs, she stated that the applicant is essentially independent but “is no longer motivated to attend to her self-care as she had been pre-accident”. Furthermore, the applicant’s psychological impairments continue to prevent her from resuming her pre-accident household and home maintenance activities.
3) Dr. Komathy Jayashankar – Family Doctor
54In addition to providing Dr. Jayashankar’s CNRs, the applicant commissioned a report from her family doctor, Dr. Jayashankar, dated March 25, 2017. The report is comprised of hand-written responses to multiple questions posed to Dr. Jayashankar by the applicant’s legal representatives.
55The covering page and the hand written responses sum up the applicant’s accident-related injuries as left shoulder tendinitis and worsening neck and back spasm. Dr. Jayashankar concludes that due to these injuries, the applicant: a) experiences difficulties with her regular instrumental activities of daily living; and b) suffers from substantial inability to perform the housekeeping and house maintenance tasks as well as self-care tasks.
4) Disability Certificates (OCF-3)
56All three disability certificates submitted by the applicant indicated that the applicant required far more than 12 weeks to recover, suffered a complete inability to carry on a normal life and was substantially unable to perform the housekeeping and home maintenance services in the manner she did prior to the accident.
5) Other Assessments & Examinations
57The applicant visited the function and pain program at Mount Sinai Hospital, where Dr. Trung Ngo, associate clinical director, conducted an in-person intake interview on August 19, 2016. Thereafter, Nicole Dent, psychological associate, spoke with the applicant over the telephone on September 7, 2016 to obtain details of her injuries and pain condition. The purpose of these intake interviews was to determine the applicant’s suitability for their function and pain program. It was concluded that in order to determine the applicant’s eligibility for the program, she should first participate in an interdisciplinary assessment of her chronic pain condition.
THE RESPONDENT’S EVIDENCE
58The respondent contends that the applicant suffers from multiple pre-existing medical conditions affecting her daily living, for which she visited Dr. Jayashankar frequently, and on multiple occasions, attended the [hospital emergency department]. These conditions include rheumatoid arthritis, chronic headaches, left shoulder pain stemming from a partial tear on supraspinatus distal tendon and knee pain.
59The respondent submits that the applicant has failed to meet her burden to establish that her accident-related impairments continuously prevent her from engaging in substantially all the activities in which she ordinarily engaged prior to the accident.
60Amongst other things, the respondent argues that the applicant’s treating practitioner, Dr. Jayashankar’s CNRs fail to provide “contemporaneously collected information” to suggest an accident-related diagnosis. Of particular importance is the fact that the applicant claims to have visited Dr. Jayashankar on the day of the accident; however, his CNRs do not contain any handwritten or typed up notes from that day.
61The respondent further relies on the expert reports of the following two doctors:
Dr. Michael Hanna, family and emergency medicine
Dr. Louise E. Koepfler, psychologist
1) Dr. Michael Hanna
62The applicant was assessed by Dr. Hanna on October 24, 2014 for musculoskeletal injuries, to determine whether her injuries fall outside the MIG. At the time of this assessment, the applicant reported complaints of neck pain, left shoulder pain, bilateral hand and feet pain and right-sided chest pain.
63Based on his examination, Dr. Hanna concluded that as a result of the accident, the applicant sustained soft-tissue injuries specifically sprain/strain of the cervical spine. He did not find any reproducible impairment to support the ongoing symptoms. He further opined that the pain in the applicant’s hands and feet was related to her rheumatoid arthritis, and due to the mechanics of the accident, the pain in her left shoulder could not be attributed to the accident, as it was unlikely she hit her shoulder against anything.
64He further noted that in the absence of substantial medical documentation for review, combined with “vagueness” of the applicant’s answers, he found it difficult to provide a decisive opinion on accident-related injuries versus her pre-accident medical conditions.
2) Dr. Hanna’s Reassessment Reports
65From his review of Dr. Jayashankar and hospital’s CNRs, Dr. Hanna determined that the applicant had a longstanding history of headaches, shoulder pain, neck pain, and back pain. He noted that at the time of the in-person assessment, the applicant’s pain complaints were related to neck, left shoulder, bilateral hand and feet and rib cage, all of which predated the accident and were pre-existing conditions.
66Drawing on information he obtained during his in-person assessment and through his review of the new medical documents, Dr. Hanna concluded that the applicant did not suffer from complete inability to carry on a normal life. In addition, he opined that the accident-related injuries did not cause an impairment that continuously prevented her from engaging in substantially all of the activities in which the applicant ordinarily engaged before the accident.
3) Dr. Louise Koepfler
67Dr. Koepfler conducted a psychological assessment of the applicant, which included a clinical interview, file review and psychometric testing. The psychometric testing primarily comprised of validity and reliability testing, including the TOMM test, pain symptoms rating – revised (PSR-R), Owestry functional assessment questionnaire, hospital anxiety and depression scale (HADS).
68Dr. Koepfler concluded that the applicant had a tendency to grossly magnify her difficulties. As a result, Dr. Koepfler did not have sufficient valid or reliable data to formulate a DSMIV-TR diagnosis. It also made it difficult for her to determine the extent to which her pre-existing conditions had been exacerbated.
69In light of the test results and absence of any premorbid psychological impairment, Dr. Koepfler did not find any indication that the applicant suffered from a complete inability to carry on a normal life as a result of the accident.
4) Dr. Koepfler - Paper Review Reassessment
70Dr. Koepfler had an opportunity to review the same documents Dr. Hanna reviewed as part of his paper review reassessments. Based on her review, she determined that the medical documents do not indicate or make mention of any emotional distress. In particular, Dr. Jayashankar’s CNRs do not mention any complaints of emotional distress, pre-accident or post-accident, other than the applicant’s distress at her daughter’s cancer diagnosis.
71As a result, Dr. Koepfler maintained her conclusion she had reached after the in-person assessment. She opined that from a psychological perspective, there is no indication (from psychometric testing, clinical interview and/or review of the medical documentation) that the applicant suffers from complete inability to carry on a normal life.
Finding
72Based on the testimony of the applicant and her son, as well as the medical evidence before me, I find that, on a balance of probabilities, the applicant has failed to establish entitlement to non-earner benefits.
73In my overall deliberations, while I have considered all medical documentation, I have assigned the most weight to Dr. Jayashankar’s CNRs than to any other medical report due to his role as the applicant’s treating health practitioner. The crux of the matter in this case relates to the applicant’s pre-accident and post-accident health and the outcome depends on the analysis of evidence related to that. Dr. Jayashankar’s CNRs provide the most holistic, real-time and consistent picture in that regard.
74I note that the medical evidence (particularly [the hospital’s] emergency CNRs and Dr. Jayashankar’s CNRs) suggests that for months before the accident, the applicant complained of continuous pain symptoms, which she now claims are accident-related, and which are ultimately the cause of her impairments. The causes of these complaints prior to the accident were identified to be rheumatoid arthritis and a partial tear in the left shoulder.
75Considering the applicant’s pain symptoms prior to the accident, on a balance of probabilities, I do not find that the applicant’s ability to perform her daily activities was as pain free and unrestricted as the testimonies and self-reporting to the experts depict it to be.
76I am not convinced with the applicant and her son’s respective testimonies contending that the applicant was able to perform her tasks of daily living without any limitations. I question their testimonies, which vaguely portray the quality of her engagement in pre-accident activities as unfettered, and the life after the accident as completely disabled.
77To further support her position, the applicant also commissioned a report from Dr. Jayashankar. This report stated that the applicant’s current limitations are due to exacerbation of her pre-existing injuries as a result of the accident, and the applicant is completely unable to engage in her pre-accident activities. After carefully considering and reviewing the contents of Dr. Jayashankar’s report, I gave preference to his CNRs over his report in my deliberations because they provide more comprehensive information on the applicant’s pre-accident and post-accident health.
78The information contained in the CNRs fails to corroborate the conclusions drawn by Dr. Jayashankar in his report. The CNRs do not: a) discuss the accident in their entries; b) reflect the accident as the cause of the applicant’s ongoing pain symptoms; c) point out the accident as the cause of exacerbation of her pre-existing medical conditions; and d) discuss emotional or psychological distress being experienced by the applicant since the accident (except once for a non-accident related reason). Therefore, I find it hard to reconcile the conclusions in Dr. Jayashankar’s report with the information reflected in his CNRs, and since he did not testify in-person, the inconsistencies remain unresolved.
79As a result, I refuse to view the contents of the report in isolation, and find the information in Dr. Jayashankar’s CNRs to be more persuasive than the conclusions drawn in his report. In the end, I assigned little weight to Dr. Jayashankar’s report.
80In the alternative, in order to successfully establish entitlement to NEBs, the applicant needed to paint a detailed and itemized picture of her pre-accident and post-accident activities for me. The applicant failed to do so. In fact, the only such piece of information came from the applicant’s son, who testified that prior to the accident, the applicant spent approximately 7 hours a day cooking three meals, and after the accident, does not cook at all. The applicant did not provide similar information about her other activities during her testimony.
81The applicant’s failure to provide such information makes it impossible for me to properly assess whether the applicant is prevented from engaging in substantially all of the pre-accident activities in which she ordinarily engaged. I do not have sufficient information about the time commitments of the applicant’s pre-accident activities, i.e., how much time did the applicant spend on each activity she has listed she engaged in prior to the accident, per day or per week or per month. I do not know and I need to know in order to make a decision.
82In the absence of this information, I cannot determine what “substantially all” of the applicant’s pre-accident activities are. I find that the applicant has not met her onus of proving that she is prevented from engaging in substantially all of the pre-accident activities in which she ordinarily engaged. This, in combination with the inconsistencies in evidence pointed above, requires me to dismiss her claim vis-à-vis non-earner benefits.
Issue # 2: Is the applicant entitled to receive attendant care benefits in the amount of $629.15 on a weekly basis?
The law
83In order to be entitled to monthly attendant care benefits, section 19 of the Schedule requires that the applicant must first establish that the benefit is reasonable and necessary. If the applicant is successful in satisfying initial entitlement, among other things, he/she must then establish that they have incurred the expense of attendant care. Section 3(7)(e) of the Schedule sets out the definition of “incurred” that is relevant in this appeal and states that an expense is not incurred unless:
(i) the insured person has received the goods or services to which the expense(s) relates;
(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and
(iii) the person who provided the goods or services:
did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident; or
sustained an economic loss as a result of providing the goods or services to the insured person
84The applicant must satisfy all three requirements of “incurred” listed above in order to be successful in claiming entitlement.
The Applicant’s Position
85An assessment of attendant care needs report was completed by Dennis Bishev, a registered nurse. Based on his assessment, Mr. Bishev recommended monthly attendant care services for a total of 610 minutes a week. As a result, a monthly attendant care benefit in the amount of $629.15 was recommended in Form-1.
86The applicant testified that “from time to time”, she is unable to engage in any personal care activities and relies on her son for assistance. For example, the applicant stated that her son assists her with a) combing her hair when she has difficulty raising her hand; b) turning and opening the “pipe” when she goes for a bath; c) making the bed in the morning; d) bringing food in the afternoon and medication in the evening; and e) driving to medical appointments and the emergency room, when needed.
87The applicant’s son, confirmed during his testimony that he assists the applicant with her hair, adjusting the showerhead before showers, making her bed in the mornings and taking her to medical appointments. According to him, he provided assistance for approximately an hour and half to two hours per day, though it was contingent upon the day and varied accordingly. He further stated that he also takes care of his grandmother now.
88The applicant further testified that she promised her son, $600.00 a month, for a total of $14,440.00 from the settlement funds for providing assistance around the house. In relation to this promise, she submitted a promissory note, dated September 1, 2016, as evidence. The note confirmed the details of the payment she promised her son.
89With respect to “economic loss”, the applicant argues lost opportunity. To establish the loss, the applicant advanced an employment letter from an automotive repair business. This letter confirmed that [they] offered a full-time position to the applicant’s son for the duration of the summer at an hourly wage of $15.00, commencing in April 2014. However, the applicant’s son confirmed in his testimony that due to the applicant’s health and her need for someone to take care of her, he declined to take the offer, as the family could not afford a personal support worker. As a result, he potentially lost $2,500.00 a month.
90The applicant’s son further testified that typically, he worked part-time during the school year and full-time during the summer, even if he took summer classes. At the time of the hearing, he confirmed that he was still looking after his mother and was employed on a part-time basis, translating up to three to four days a week.
The Respondent’s Position
91The respondent disagrees with the applicant’s position and argues that the applicant has failed to provide any evidence of economic loss sustained by her son. It also disagrees with the “lost opportunity” argument advanced by the applicant and objects to the admissibility of the employment letter. According to the respondent, since the contents of the letter could be authenticated, since it’s author did not appear as a witness, admitting the letter into evidence would be an error in law. In the alternative, if the letter is admitted, it should be given little to no weight.
92According to the respondent, the applicant has failed to provide any evidence of economic loss sustained by her son. The applicant did not advance any past employment records or any information about the part-time jobs undertaken by her son to the respondent or as evidence at the hearing. The applicant also failed to provide any income tax records, detailing the past income for her son.
93Finally, in addition to all of the above, the respondent pointed out that the applicant’s son testified that he started looking after the applicant on a full-time basis on or about May 2014. It could not be then that the applicant’s son declined a full-time job offer in April 2014 due to the fact that he needed to provide attendant care services to the applicant. But because he claims that he did decline the job offer, the respondent argues that the reason for doing so was not related to offering attendant care services to the applicant.
94The respondent did not provide a Form-1 of its own and relied solely on the above noted arguments and medical evidence discussed in the previous section.
Finding
95In light of the evidence before me, on a balance of probabilities, I find that the applicant has not met her onus of establishing entitlement to attendant care benefits. As a result, I do not find the respondent’s failure to submit a counter Form-1 as significant in my deliberations.
96Much like the previous section, I am continually unable to reconcile the gaps between the oral testimony and Dr, Jayashankar’s CNRs. Hence, I assign more weight to the Dr. Koepfler’s findings with respect to the validity and reliability testing she conducted of the applicant. In my opinion, the totality of the evidence suggests that the applicant’s accident-related impairments do not warrant attendant care benefits, I remain unconvinced and continue to question the extent of the applicant’s pre-accident functionality. Therefore, I find that the attendant care benefits are not reasonable and necessary.
97I find that the applicant has failed to establish that the expenses were incurred, as stipulated in s. 3(7) of the Schedule. Specifically, the applicant has failed to establish the third requirement, namely that her son, the service provider, has sustained economic loss.
98Since there is no financial or monetary loss in this case, the applicant alleges economic loss due to lost opportunity for her son. I find the applicant’s failure to introduce the author of the employment letter as a witness to authenticate that letter, fatal to her claim for economic loss. I reject her son’s evidence with respect to the assistance he provides and the alleged economic loss because I find it unconvincing and vague.
99Therefore, on a balance of probabilities, I find that the applicant has not met her burden of proving entitlement to attendant care benefits.
Issue # 3: Is the applicant entitled to the cost of examination in the amount of $2,260.00 for a chronic pain assessment?
100In light of my finding in the preliminary issue raised by the respondent, the applicant is not entitled to the cost of examination for a chronic pain assessment, until she attends the s.44 assessments.
Issue # 4: Is the applicant entitled to Interest on overdue payments?
101Since the benefits are not payable, the applicant is not entitled to any interest.
CONCLUSION
102For the reasons noted above, I find that:
The applicant is not entitled to non-earner benefits in the amount of $185.00 per week.
The applicant is not entitled to attendant care benefits in the amount of $629.15 per month.
The applicant is barred from bringing forward a claim for a chronic pain assessment until she attends the s.44 assessment. Hence, she is not entitled to the cost of examination for a chronic pain assessment in the amount of $2,260.00.
The applicant is not entitled to interest.
ORDER
103In light of foregoing, the applicant’s appeal is dismissed.
Date of Issue: April 25, 2018
Khizer Anwar
Adjudicator