A.M. v. Aviva Insurance Company of Canada, 2019 CanLII 130380

Licence Appeal Tribunal

Citation: A.M. vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-008059/AABS

Tribunal File Number: 18-008059/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:

A.M.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

PANEL: Brian Norris, Adjudicator

APPEARANCES:

For the Applicant: Kwaku Bona, Paralegal

For the Respondent: Catherine H. Zingg, Counsel

HEARD: In Writing on: June 17, 2019

OVERVIEW

1The applicant was injured in an automobile accident on May 19, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Are the applicant's injuries predominantly minor injuries as defined in the Schedule and subject to the Minor Injury Guideline ("MIG") and the $3,500.00 funding limit on treatment?

2. Is the applicant entitled to receive a weekly non-earner benefit ("NEBs") in the amount of $185.00 per week from November 21, 2016 to November 20, 2018 and $320.00 per week from November 21, 2018 to-date and ongoing?

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

RESULT

3The applicant is not entitled to the benefits claimed.

BACKGROUND

4The applicant was the driver of a car which was struck on the side by another vehicle. He went to a collision reporting centre following the accident and was taken from there to the hospital with complaints of left shoulder and general left side pain. The applicant was assessed and discharged with pain medication and a recommendation to apply heat and cold to the affected areas. The applicant went to another hospital about two weeks later on June 11, 2016 and again complained of left shoulder pain. X-rays were conducted and produced unremarkable results.

5The respondent characterized the applicant's injuries as predominantly minor injuries and subject to the MIG and the $3,500.00 funding limit on treatment. The respondent also denied the applicant's claim for NEBs. The applicant disagrees and claims entitlement to NEBs and seeks a finding his injuries are not subject to the MIG and the $3,500.00 funding limit.

6It is the applicant's burden to prove his injuries are not predominantly minor and he suffers a complete inability to carry on a normal life as a result of the accident.

PROCEDURAL ISSUE - EXPERT WITNESSES

7In reply submissions, the applicant claimed the respondent failed to properly disclose expert witnesses according to rule 10.2 of the Common Rules and Procedures and asked me to exclude any document or thing as evidence.

8I decline the applicant's request because the request is too vague. The applicant did not specify which witness the respondent failed to properly disclose. Nor does the applicant specify which document or thing he wishes to omit. I am unable to dismiss evidence without knowing what evidence the applicant specifically wants omitted or specific grounds for the request to exclude.

THE MINOR INJURY GUIDELINE (MIG)

9There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The definition of "strain" is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10If the applicant's injuries are deemed by the respondent to be minor in nature, the responsibility is on the applicant to establish that the funding limit should not apply.

11The applicant made no initial submissions on whether he suffered predominantly minor injuries. In reply, after the respondent pointed this out, the applicant claimed psychological injuries exclude him from the definition of minor injury.

12The procedure for which the applicant made submissions on the nature of his injuries was improper and left the respondent without an opportunity to reply. This is normally remedied by providing the respondent an opportunity to respond to the applicant's reply. However, it is unnecessary because the respondent is not prejudiced by an inability to address the applicant's reply submissions. The reply submissions did not raise a new or unforeseeable position, nor did they include any new medical evidence. The reply submissions only re-stated the findings in the previously-submitted psychological assessment report.

13The evidence before me fails to establish the applicant suffered anything more than minor injuries. As a result, and for the following reasons, I find the applicant has suffered predominantly minor injuries as defined by the Schedule and is subject to the $3,500.00 funding limit on treatment.

14The disability certificate completed by the applicant's family physician, Dr. J. Oguamanam, dated January 18, 2017 does not indicate the applicant suffered any psychological injuries. The disability certificate notes left shoulder pain, back pain, left knee pain, and neck pain but no psychological injury or issues. Likewise, the Application for Accident Benefits ("OCF-1") completed by the applicant and dated June 27, 2016 lists unspecified injuries to the lower back, left side, left shoulder, and headaches. All of these listed injuries fall within the definition of minor injury.

15Dr. Oguamanam's CNRs fail to show psychological injuries. They show only one entry, on March 10, 2017, which addresses the applicant's psychological health. The March 10 entry notes "support psychotherapy" was provided by Dr. Oguamanam. This solitary entry is insufficient to establish the applicant has suffered from psychological injuries with the result that his minor injuries are no longer predominant.

16The Ontario Ministry of Transportation medical report does not support the applicant's claim. The report dated May 17, 2017, completed by Dr. Oguamanam, noted the applicant had normal mental competence and judgement. The report also noted the applicant exhibited no evidence of emotional disorder.

17The psychological assessment reports are not compelling evidence of psychological injuries. The report by Dr. A. Marino, psychologist, dated October 4, 2017 ("the Marino report"), concluded the applicant did not present with any significant psychological impairment or diagnosis based on psychometric testing and a clinical interview. The report by Dr. A. Shaul, dated October 22, 2017 ("the Shaul report"), concluded the applicant presented with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Driver and Passenger Phobia, and Somatic Symptom Disorder with Predominant Pain based on psychometric testing and a clinical interview.

18I prefer the Marino report over the Shaul report. The findings in the Marino report are a more accurate representation of the applicant's psychological health when reviewed together with the other medical documents before me. The psychometric test results in Shaul report were nearly the same as in the Marino report except the Shaul report found the applicant scored in the severe depression range during the Beck Depression Inventory II. There is, however, no other evidence before me which indicates the applicant has severe depression. Also, the Marino assessment included the Structured Inventory of Malingered Symptomology test, but the Shaul assessment did not. The Marino report found the applicant produced an invalid profile during the Structured Inventory of Malingered Symptomology test and advised the results of the remaining psychometric tests should be interpreted with caution.

IS THE APPLICANT ENTITLED TO NON-EARNER BENEFITS?

19While I have found the applicant's injuries are predominantly minor injuries and subject to the $3,500.00 funding limit, this does not disqualify the applicant's claim for entitlement to NEBs. Having reviewed the submissions and evidence, I find the applicant has not provided sufficient evidence to support a claim for NEBs. My reasons are as follows.

20The applicant's NEB claim is two part. First, the applicant submits the respondent must pay NEBs for the period from November 20, 2016, when the 6 month waiting period expired, until the respondent denied NEBs on April 10, 2017. The applicant submits it is incumbent on the respondent to commence payment of NEBs pursuant to section 37(2) of the Schedule. The second part of the applicant's claim is for the period from April 11, 2017 on-going.

21I find the applicant is not entitled to NEBs for the first period because the applicant has not provided a date for which the application for NEBs was made. Pursuant to section 36(3), the respondent is not liable to pay for NEBs for any period before the applicant submitted a disability certificate. The applicant claims a disability certificate, completed by his family doctor in June 2016, was submitted, however, the applicant did not provide the document and there is no record of it in the family doctors CNRs. In fact, the applicant only started seeing his family doctor on September 22, 2016.

22I am unable to determine when the applicant submitted a disability certificate to initiate an application for NEBs. The only disability certificate before me was completed by Dr. Oguamanam on January 18, 2017, and it is unknown when that document was submitted. The applicant's submissions and other evidence are silent on the when the disability certificate was submitted. The applicant submits there is no evidence of any response to his claim for NEBs until April 2017. However, even if I were to accept this as fact, it is not relevant until the applicant establishes when the OCF-3 was submitted. Likewise, the applicant's claim that the respondent must pay NEBs for the period up to when the IE reports were delivered fails to appreciate the respondent does not have to pay immediately upon receipt of a disability certificate. Pursuant to section 36(4)(b), the respondent may request an IE, which is what appears to have occurred here. Section 36(6) provides the applicant is entitled to NEBs if he has submitted an application and completed disability certificate but the respondent has not complied with the time limit of 10 business days. Without a date of submission for the disability certificate, I am unable to determine whether the respondent complied with the timeline and am therefore unable to determine whether the applicant is entitled to the benefit.

23In addition, I find the applicant is not entitled to NEBs for any period because he has failed to establish a complete inability to carry on a normal life as a result of the accident. The applicant may be entitled to NEBs if he can prove, on a balance of probabilities, that he can no longer substantially engage in the activities like he used to prior to the accident.

24The applicant claims entitlement to NEBs because he was unable to attend classes, perform his Islamic worship, and play soccer. However, the applicant has not provided evidence to sufficiently establish these claims.

25There is insufficient evidence before me to establish the extent of the applicant's pre-accident activities and how post-accident limitations prevent him from engaging in those activities. The only evidence of the applicant's pre- and post-accident activities and limitations are as a result of the applicant's self-reporting in assessments. This alone does not disqualify the applicant from meeting the evidentiary burden however, the applicant's evidence is unreliable due to the inconsistencies between the reports. For example, I am unable to determine something as simple as which side of the applicant's vehicle was struck. The disability certificate, signed statement dated October 5, 2016, ambulance records, and the Marino IE note the applicant was struck on the driver's side. Yet, the applicant's submissions, hospital records, and the Shaul report state it was the passenger side.

26There is no medical evidence to show the applicant cannot attend classes as a result of injuries from the accident. The applicant submits a letter from an organization which provides the services however, the location is different than what the applicant noted in the signed statement dated October 5, 2016. The letter notes the applicant attended classes from February 23, 2016 to May 18, 2016 and states he stopped attending "pending treatment". I find this letter is unpersuasive and does not support the applicant's claim because it provides no medical basis for the applicant's absence from classes. Not one of the applicant's treating medical professionals advised him to refrain from attending classes and there is no medical record of this either.

27In addition, there are some discrepancies surrounding the applicant's schooling. Contrary to his submissions that injuries from the accident prevented him from attending classes, the applicant's OCF-1 notes he was not attending full-time school at the time of the accident. Also, the April 5, 2017 insurer's examination report by S. Lee, occupational therapist, says the applicant was attending high school at the time of the accident and returned to classes following the accident but missed some due to injury-related issues. The April 5, 2017 insurer's examination report by Dr. P. Tansey, orthopaedic surgeon, states the applicant missed about a week of classes following the accident and the Marino report states he did not enroll in classes until after the accident. Considering the confusion around the impact the applicant's injuries had on his class attendance, if any, I am unable to determine his accident-related injuries prevented him from engaging in this activity.

28The applicant's self-reports and submissions fail to establish he is unable to attend mosque and pray as a result of accident-related injuries. The applicant submits he attended mosque 5 times a day to pray prior to the accident and is unable to following the accident due to injuries sustained from it. Similar to the submissions on the applicant's inability to attend class, there is no medical basis for this. Specifically, there is no evidence of a medical recommendation for the applicant to refrain from attending mosque or prostrating/praying.

29The Ontario Ministry of Transportation medical report contradicts the applicant's claims. The applicant claims a complete inability to carry on a normal life from the date of the accident ongoing yet, in the Ontario Ministry of Transportation form dated May 16, 2017, Dr. Oguamanam states the applicant is in good health and he is fit to drive the truck. The document finds the applicant's locomotion in upper and lower extremities is normal as well as in the neck and lumbar area. Such findings are not compatible with someone who claims physical and psychological injuries has rendered him completely unable to carry on a normal life.

30There is insufficient evidence to show the applicant has a complete inability to carry on a normal life as a result of psychological injuries. The Shaul and the Marino reports are the only documents which substantially investigate the applicant's psychological health. Dr. Shaul found the applicant was psychologically unable to carry on a normal life despite having reviewed none of the applicant's medical records other than the Marino report. Dr. Marino did not comment on the applicant's entitlement to NEB's but found the applicant did not present with any significant psychological impairment or diagnosis. I have noted my findings on the Shaul and Marino reports above and, overall, find the evidence before me is not indicative of someone who suffers a complete inability to carry on a normal life as a result of psychological or physical injuries, or a combination of both.

INTEREST

31Interest is only payable on overdue benefits pursuant to section 51 of the Schedule. Having found the applicant is not entitled to NEBs, I can conclude no payments went overdue. The applicant is not entitled to any interest as a result.

CONCLUSION

32Based on the evidence before me, I find that the applicant's injuries as a result of the accident fall within the MIG and the applicant is subject to the $3,500.00 funding limit.

33The applicant does not have a complete inability to carry on a normal life and is not entitled to any NEBs as a result.

34The applicant is not entitled to interest as no payments went overdue.