M.C. v. Aviva General Insurance Company, 2019 CanLII 126206

Citation: M.C. vs. Aviva General Insurance Company, 2019 ONLAT 18-006840/AABS

Tribunal File Number: 18-006840/AABS

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:

[M.C.]

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Lisa Bishop

For the Respondent: Patrick Sinclair

Heard in writing and in person on July 23, 2019

OVERVIEW

1The applicant was involved in an automobile accident on May 1, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute.

ISSUES IN DISPUTE

3The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of June 9, 2016 to May 1, 2017?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $3,335.98, for psychological services recommended by Toronto Healthcare Clinic Inc. in treatment plan submitted on November 15, 2016, and denied by the respondent on November 30, 2016?

(iii) Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a psychological assessment, recommended by Toronto Healthcare Clinic Inc. in a treatment plan submitted on July 6, 2016, and denied by the respondent on July 26, 2016?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

(v) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULTS

4I find that the applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of June 9, 2016 to May 1, 2017?

5I find that the applicant is not entitled to receive a medical benefit in the amount of $3,335.98, for psychological services and payment for the cost of examination in the amount of $2,000.00 for a psychological assessment.

6I find that the applicant is not entitled to an award or interest.

BACKGROUND

7On May 1, 2015 the applicant ‘s vehicle was rear ended while stopped at a stop light. He was not required to go to the hospital and drove home. The applicant did not hit his head or lose consciousness. The applicant was working at the time and returned to work on August 1, 2015. There was little damage done to the car. The applicant went on employment insurance, due to a shortage of work, on November 27, 2015.¹ The applicant continued on employment insurance until January 16, 2017, when he returned to work until he was let go on April 4, 2019, due to shortage of work.²

8The applicant had applied to the Tribunal in a previous application relating to the same accident, that dealt with other issues being the minor injury guideline, attendant care benefits, various medical benefits and a special award. This was an in- person hearing held on November 27, 2017 and on January 10, 2018. Adjudicator Truong found that the applicant suffered soft tissue injuries, had returned to playing basketball, was able to perform all self care tasks and had reported no functional limitations, from the accident,³ Adjudicator Truong also noted that the applicant was not claiming any psychological issues as a result of the accident. The applicant did not give any evidence at the hearing on July 23, 2019.

9On November 5, 2015, the applicant submitted a Disability (OCF-3) dated November 11, 2015. Part 6 indicated that the applicant did not meet the disability test for either income replacement benefits or non- earner benefits.⁴ On June 23, 2016, the applicant submitted a second disability Certificate (OCF-3) dated June 9, 2016. Part 6 of this OCF-3 indicated that the applicant now met the disability test for IRB, for non- earner benefits, for housekeeping and home maintenance benefits.⁵

10The respondent informed the applicant by letter dated August 2, 2016 that he may be eligible for IRB and requested further information pursuant to sec 33 of the Schedule. The applicant was informed by the same letter that he was not entitled to receive non-earner benefits as he was employed at the time⁶ of the accident.

ANALYSIS

NON-EARNER

11Section 12 of the Schedule requires a non- earner benefit to be paid to an insured when the insured suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an IRB. Section 3(7) (a) of the Schedule states that 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.

12The test for non- earner benefits is outlined in the case of Heath Economical Mutual Insurance company⁷. The starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

13The applicant ‘s position is that the respondent failed to comply with section 35 of the Schedule by not giving a notice of election to the applicant. The applicant’s position is that therefore under section 36 (6), the benefit should be paid for the time period between the date of the application and the proper election response by the respondent. The applicant also claims that the notice by the respondent given on August 2, 2016, was defective as the applicant could be entitled to a NEB, even if the applicant is on employment insurance.

14The respondent’s position is that section 36(6) doesn’t relate to section 35. The respondent did comply with section 36(4), to which section 36(6) of the Schedule relates to by giving a reason, albeit incorrect, why the NEB was not applicable, why the applicant may be entitled to an IRB, and requested under section 33 of the Schedule, more information. The respondent argues that its notice was in compliance with the Schedule, even though part of its opinion was incorrect on the denying of the NEB. The respondent agues that it acted in good faith. The respondent also argued the Strangers v Allstate Insurance Company of Canada case which decided that “inadequate notice did not automatically entitle the insured to payments for benefits. The applicant still had to prove her claim.”⁸

15I agree with the respondent’s position that it complied with section 36(4) of the Schedule, even though part of its decision was incorrect. I agree with the respondent’s position that Section 35 of the Schedule only applies if an application indicates that the applicant may qualify for two or more of the NEB, IRB, or caregiver benefits. There is no penalty for non compliance with this section. The applicant did give notice in its August 2, 2016 letter that it denied the applicant’s claim to a NEB, which in reality would not give any option for an election. The “Strangers” case makes it clear that an insured must prove its entitlement to benefits despite any notice deficiencies.

16The next step for the applicant is to prove that he meets the Schedule’s requirement that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. This requires an analysis of his pre-accident activities with his post accident activities.

17The applicant relies on Dr. Shaul’s report dated September 14, 2016, which concluded that the applicant had Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (Travelling in a vehicle). The report indicated that the applicant had difficulty in functioning and inability to perform tasks of his pre-accident job. The report also opined that the applicant’s psychological condition prevented him from performing his activities of daily living. The report indicates that the applicant had to quit his job post accident, due to immense pain. The report indicates that the applicant has become socially withdrawn, stopped attending family gatherings, visiting and entertaining, and has lost interest in activities that he used to do.

18The applicant reported to Dr. Julie Millard, Physical Medicine and Rehabilitation Specialist, on an IE that “He was let go⁹.The applicant on the government forms for employment insurance indicated that he was unemployed “due to a shortage of work”:¹⁰ His Record of Employment from Tate ASP Access FLRS Inc. confirms that he was unemployed due to shortage of work.

19The IE reports of Lyndy Goldlust, occupational therapist, Dr. Julie Millard a physical medicine and rehabilitation specialist and Dr. Sahahriar Moshiri, psychologist, found that the applicant had minimal physical functional impairment and had self reported independence with personal care activities and some or all housekeeping activities.¹¹ The applicant reported to Dr. Moshiri that he had no psychological impairments in his activities of daily living, as a result of the accident.¹²

20I give very little weight to Dr. Shaul’s report as it is based mostly on the self reporting of the applicant and is contradicted by the other medical evidence and the applicant’s own evidence. The findings of the IE reports of Lyndy Goldlust, Dr. Julie Millard, and Dr. Sahahriar Moshiri are confirmed by the information given by the applicant to the government that he could work, but that there was no work available. I place great weight on the applicant’s own evidence under oath before Adjudicator Truong that he was able to perform all self care tasks, and had no functional limitations, from the accident.

21I find that the applicant has not proven on a balance of probabilities that he has met the requirements under the Schedule to qualify for an NEB.

Is the applicant entitled to receive a medical benefit in the amount of $3,335.98, for psychological services and a medical benefit in the amount of $2,000.00 for a psychological assessment

22Section 15 of the Schedule requires all medical benefits to be reasonable and necessary, before an insurer is required to pay for them.

23The applicant relies again on Dr. Shaul’s report which recommended 14 counselling sessions of cognitive behavioural therapy, designed to teach the applicant relaxation techniques, reduce anxiety and help manage stressors including his functioning.

24Dr. Karmy, a chronic pain specialist, in a chronic pain report dated August 29 2016¹³ noted that the applicant reported sleep disturbances, anxiety and mood problems, feeling depressed and fatigued, interpersonal conflicts difficulties, and keeping attention.

25I find that the reports of Dr. Shaul and Dr. Karmy are based on self reporting and conflict with the medical reports of Dr. Millard and Dr. Dr. S. Moshiri. The applicant admitted in examination under oath before Adjudicator Truong that he was not claiming any psychological issues as a result of the accident. Dr. Millard and Dr. Moshiri found no objective signs of any accident related impairments. As the applicant’s testimony supports the reports of Dr. Millard and Dr. S. Moshiri , I accept their reports over the reports of Dr. Shaul and Dr. Karmy.

26I therefore find based on the above, that the treatment plans are not reasonable and necessary.

AWARD AND INTEREST

27There is no evidence before me that the respondent unreasonably withheld or delayed payment of benefits as there were no benefits to be paid.

28I therefore find that the applicant is not entitled to any award or interest.

Date of Issue: December 9, 2019

__________________________

Robert Watt

Adjudicator

Footnotes

1. 1Tab E1 Employment Insurance File dated May1, 2015-July 21 2017
2. 2Tab E3 Employment Insurance File dated May 31, 2019
3. 3Book of Authorities Tab 1 M.C. v. Aviva insurance company of Canada 17-002614/AABS May 7, 2018 p7
4. 4Tab D2Ocf-3 Dated November 11, 20154
5. 5Tab B5 OCF-3 dated June 9, 2016
6. 6Tab C35 Letter dated August 2, 2016
7. 7Book of Authorities Respondent Tab 5
8. 8Book of Authorities Tab 3 2010 ONCA 457
9. 9Tab A13 Section 44 of Dr. Millard dated May 24 2077 p 6
10. 10Tab E1 Employment Insurance File dated May 1 2015 p12
11. 11Tab A13 Section 44 Report of Dr. Millard dated May 27 2017 at p 5-6; Tab A12 section 44 Report of L. Goldust dated December 21, 2016 at p3
12. 12Tab A14 IE Report of Dr. Moshiri dated January 14, 2019 p 10
13. 13Tab 8 of the Applicant Brief of Documents p53-62