S.S. v. RBC Insurance Company, 2019 CanLII 126106

Citation: S.S. vs. RBC Insurance Company, 2019 ONLAT 18-000222/AABS

Tribunal File Number: 18-000222/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:

S.S.

Applicant

and

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Jessie V. Tran, Counsel

For the Respondent:

Petros Yannakis, Counsel

HEARD:

In Writing: December 5, 2019

OVERVIEW

1S.S. was injured as a passenger in an automobile accident on April 21, 2015 and sought benefits from the respondent, RBC Insurance Company, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). S.S. applied for a non-earner benefit (“NEB”) that was paid for 22 weeks by RBC. Following a series of assessments, the NEB was terminated on the basis that RBC believed S.S. did not suffer a complete inability to carry on a normal life as a result of the accident. RBC also denied a treatment plan for a social work assessment because it was not reasonable and necessary.

2S.S. disagreed with RBC’s determinations and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

3The following are the issues to be decided, as set out in the Case Conference Order dated July 17, 2018:

I. Is the applicant entitled to the non-earner benefit in the amount of $185 per week for the period of March 23, 2016 until April 21, 2017?

II. Is the applicant entitled to the cost of examination in the amount of $2,200 for a social work assessment pursuant to a Treatment and Assessment Plan (OCF18) completed by York Medical Centre, submitted on June 20, 2016 and denied on June 21, 2016?

III. Is the applicant entitled to the cost of completion of a Disability Certificate (OCF3) in the amount of $200 completed by York Medical Centre, invoice submitted on December 29, 2016 and denied on January 17, 2016?

IV. Is the applicant entitled to the cost of completion of a Disability Certificate (OCF3) in the amount of $200 completed by York Medical Centre, invoice submitted on May 11, 2016 and denied on May 16, 2016?

V. Is the applicant entitled to the cost of completion of a Disability Certificate (OCF3) in the amount of $200 completed by York Medical Centre, invoice submitted on February 24, 2017 and denied on February 25, 2017?

VI. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find S.S. is not entitled to payment for the NEB as she does not suffer from a complete inability to carry on a normal life. S.S. is not entitled to the cost of the social work assessment as it is not reasonable and necessary. The Disability Certificates are not payable as the fees are not reasonable.

ANALYSIS

Non-Earner Benefit

5In order to receive a NEB, S.S. must prove that she suffers a complete inability to carry on a normal life.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 the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.³ I find on the evidence that S.S. is not entitled to a NEB for the period in dispute.

6In support of her position, S.S. cites an OCF-3 Disability Certificate prepared by her chiropractor, Dr. Bui, the clinical notes and records of her family doctor, Dr. Ha, and her own affidavit. The OCF-3 dated December 28, 2015 lists her impairments as sciatica, lumbago with sciatica, sprains and strain of the lumbar and cervical spine and knee ligament and cervical disc disorder with radiculopathy. RBC paid a NEB to S.S. in the amount of $4,096.43 for 22 weeks plus one day, before terminating the benefit on March 23, 2016, following a series of Insurer’s Examinations (“IE”).

7S.S. argues that she is entitled to payment for a NEB because, on a balance of probabilities, the evidence indicates that she is completely unable to care for herself as she did before the accident. She argues that it was unfair to deny the social work assessment in dispute because it denied her an opportunity to investigate the “complete” aspect of her life required by the NEB test. S.S. argues that she is able to continue living, but the accident has aggravated her existing impairments, resulting in a “substantially and materially limited capacity with far less enjoyment”. She refers to her previous activities that have changed post-accident, including: only attending mosque once per week where she used to go two to three times per week, limited walking which she used to enjoy, no longer gardening as well as her strained family relationships, social interactions and personal care.

8In response, RBC contends that S.S. does not suffer a complete inability to carry on a normal life, arguing that the diagnoses and impairments in the OCF-3 were “ruled out” by Dr. Osinga. The impairments in her neck and back are soft-tissue with no neurological components, rather the majority of her impairments are related to arthritis. Further, she has not provided a report from a medical professional indicating she meets the stringent NEB test. S.S.’s reported functional impairments in her affidavit are contradictory and not credible. Finally, RBC relies on the various IEs that all state S.S. does not meet the NEB test.

9Heath requires an assessment of an applicant’s pre-accident activities and life circumstances over a reasonable period of time before the accident. S.S. provided the Tribunal with an affidavit outlining her life before the accident, her injuries, and her life post-accident. The details are rather sparse, but it provides a general overview of her life: S.S. enjoyed walking and gardening, was happy and positive, was a proud wife, mother and homemaker, had limited knee pain that did not prevent her from socializing or travelling, she was not frustrated or depressed, she went to Mosque two to three times per week and could care for herself. Post-accident, she is able to shower, dress, maintain her personal care and hygiene but it is painful, more difficult and more time-consuming. She now requires assistance from her husband or children to walk and bend. She goes out with friends and family less because it is painful to walk and get in and out of cars. She can only walk short distances and only attends Mosque once per week. She states that she is more impatient and argumentative with her family and out of touch with people.

10As noted, the NEB test is a stringent one. Respectfully, I find the details provided by S.S. in her affidavit are a helpful start for the analysis, but I find her overall argument falls short of her burden to prove that these details—her day to day activities and impairments—are indicative of a complete inability to carry on a normal life as the test requires.

11While I have a general understanding of S.S.’s pre and post-accident life based on her affidavit, I find there is no substantive comparison of the amount of time she spent on each of her pre-accident activities (for example: How often and how far did she used to walk for pleasure? What types of social activities is she missing out on now because of the accident? How long does her personal care routine take post-accident compared to pre-accident? Can she kneel to pray at all? How does her pain affect her trips to Pakistan? What are the aspects of the family relationship that are strained post-accident? When she could not garden in the winter, what were her activities?) or on how much value and importance she placed on each. In the absence of this information or even greater detail, it is difficult to compare her pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued, especially considering her age at the time of the accident and the noted degeneration in other parts of her body, specifically her knees. While I am alive to S.S.’s activities and find that she has pain and should be getting treatment, I also find that she is not completely unable to do many of the things she did pre-accident, but that her participation in these activities has been somewhat reduced or slowed as a result.

12From a medical standpoint, S.S. relies solely on the OCF-3 from her chiropractor and the various clinical notes and records. While I find, overwhelmingly, that she experiences pain on a daily basis, there are no indications in any of the clinical notes and records that she has a complete inability to live a normal life because of this pain. Instead, I only have the assertion in the OCF-3 that she has a complete inability to carry on a normal life with limited analysis as to how the injuries sustained as a result of the accident have affected her daily routines, her function and her most valued activities. To her credit, I find that S.S. was very candid in her self-assessments of what she is and is not capable of doing when the pain comes.

13Where 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 that activity.⁴ On review of the notes and affidavit, while S.S. does consistently report pain, it appears that her pain is manageable and it does not practically prevent her from independent self-care or complete engagement in the activities identified in her affidavit. Also, it appears that her pain is reduced with therapy and over the counter medication. S.S.’s family physician does not state that her pain and impairments result in a complete inability to carry on a normal life. S.S. did not provide other medical evidence to support her position.

14Accordingly, I find it difficult to overlook the opinions of RBC’s IE assessors: Dr. Rashwan, psychologist, and Dr. Osinga, orthopedic surgeon. Both found that S.S. does not meet the test for NEB, from a psychological or physical perspective. On review of their reports, I agree. Other than the OCF-3 with its limited analysis, I find that there is limited evidence to rebut the findings in these reports that S.S. does not suffer from a complete inability to carry on a normal life as a result of the accident, which is the test she must meet. In her affidavit, she states that the pain, while present, gets better with treatment and is not debilitating. To the assessors, she reports pain, but also independence in her routines and self-care, that she is still able to cook, do laundry, socialize and travel in a vehicle and on a plane.

15While I find the NEB test does not require S.S. to be bed-ridden and I do recognize that S.S.’s life has changed, I find the test demands more evidence of impaired functionality and inability than S.S. provided. S.S. has failed to meet her onus to prove that she suffers a complete inability to carry on a normal life as a result the accident. As a result, I find S.S. is not entitled to payment for the NEB.

16S.S. seeks payment for the cost of a social work assessment in the amount of $2,200. In order for a treatment plan for the cost of an examination to be payable, S.S. must prove the treatment plan is reasonable and necessary on a balance of probabilities.

17S.S. argues that the social work assessment is reasonable and necessary to identify the issues arising with her family, friends, institutions, interests and activities that may be impacting her ability to respond to her impairments. She argues that a social work assessment can identify the environmental influences due to the accident that may be interfering with her recovery, while also recommending interventions. Finally, she contends that a social work assessment is a necessary component of any rehabilitation program and that it is illogical not to include one. In response, RBC submits that the treatment and assessment plan was not compliant with s. 38(3)(c) requiring a health practitioner’s approval of the treatment and assessment plan as reasonable and necessary, any determination by a social worker regarding impairment cannot be used as a justification for a medical benefit, the amount is not in accordance with the Guidelines, and it is not reasonable and necessary.

18To be frank, on the evidence, I find this treatment plan to be quite incongruent with the rest of the file and, to a larger extent, S.S.’s candid self-reporting. The stated goal of the plan, which is again authored by Dr. Bui, chiropractor, is to have a social worker address S.S.’s “psycho-social impairments” through questionnaires. The impairments identified in the OCF-18 are, in my view, even more vague: “problems related to social environment,” “problems related to certain psychosocial circumstances,” “problems in relationship with spouse or partner,” “problems related to employment or unemployment,” and “problems related to housing and economic circumstances.” The additional comments state that S.S. is having financial and social difficulties related to her disability and re-integrating into the workforce, and proposes strategies to help her and her family cope. The plan accounts for $2,000 for the assessment and $200 for the OCF-18.

19It is S.S.’s burden to prove that this plan is reasonable and necessary. I find her submissions to be unhelpful in doing so. On review of the OCF-18 and with knowledge of the facts and S.S.’s physical pain, I find it difficult to reconcile how this treatment plan is reasonable and necessary or specific to S.S. I was not directed to evidence of any psycho-social impairments or even a psychological diagnosis that could form the basis for this plan or what may have prompted it. It is unclear what S.S. means by “environmental influences due to the accident that may be interfering with her recovery” without specific details.

20S.S. also directs the Tribunal to Dr. Rashwan’s psychological report, stating that it is “definitive on this issue” because it detailed her complaints. However, I note that Dr. Rashwan found that S.S. did not have a diagnosable psychological impairment. Similarly, I was not directed to evidence of problems in S.S.’s relationship with her spouse, problems related to her employment or unemployment or problems related to housing or finances, as the impairment list suggests. While S.S. does indicate that she is less social because of her pain, I fail to see how a social work assessment is a reasonable and necessary expense to address this specific complaint. Accordingly, on the evidence before the Tribunal, I find the cost of the social work assessment in the amount of $2,200 is not reasonable and necessary. S.S. is therefore not entitled to the cost of examination for a social work assessment.

$200 for each of three Disability Certificates

21S.S. seeks payment in the amount of $200 each for the completion of three OCF-3 disability certificates completed by Dr. Bui, dated December 28, 2015, May 9, 2016 and September 19, 2016, respectively. Section 36(2) requires an applicant to submit an OCF-3 with an application for a specified benefit, including NEB.

22S.S. argues she is entitled to payment for all three OCF-3s because they are a fair and proper recovery expenditure, her recovery was not linear and that it would be a “trap” for an applicant “to assume that an insurer will automatically accept changes in a recovery plan.” In response, RBC states that there is no provision in the Schedule that allows an insured or, in this case, a treatment facility S.S. attended, to decide when to submit further disability certificates. It argues that under s. 37(1), it is the insurer’s discretion to request further OCF-3s. As RBC did not request the additional OCF-3s, it argues that none are payable.

23I agree with RBC. While I am alive to S.S.’s arguments, I find that the OCF-3s are largely duplications over time and do not indicate significant changes in her recovery plan, as alleged. For example, the initial OCF-3 stated that S.S. had a complete inability to carry on a normal life as a result of the accident but also checked the box that she was not substantially unable to perform the essential tasks of employment and estimated her recovery at 9-12 weeks. The second OCF-3 dated May 11, 2016 identifies the same injuries, maintains that S.S. suffers a complete inability to carry on a normal life, checks the box that she is now substantially unable to perform the essential tasks of employment, checks the box that she is not substantially unable to perform housekeeping and home maintenance and reiterates that her recovery is expected to be 9-12 weeks. The final OCF-3 dated February 24, 2017 again lists the same injuries and this time checks all of the boxes: that she is substantially unable to perform housekeeping and home maintenance, has a complete inability to live a normal life and is substantially unable to perform the essential tasks of employment. The anticipated duration is, again, 9-12 weeks.

24In my view, on their face, the OCF-3s provided no new or additional information on S.S.’s impairments to justify the expense in the absence of a request from RBC for an updated disability certificate. As a result, I find they are not reasonable expenses and are not payable.

CONCLUSION

25I find S.S. is not entitled to a NEB as she does not suffer from a complete inability to carry on a normal life. S.S. is not entitled to the cost of the social work assessment as it is not reasonable and necessary. The Disability Certificates in dispute are not payable as they are not reasonable expenses.

Released: December 9, 2019