TT v. Security National Insurance Co., 2019 CanLII 18333

Citation: TT vs. Security National Insurance Co., 2019 ONLAT 18-002654/AABS

Date: January 21, 2019

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:

TT

Appellant(s)

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

TT, the Applicant (Self-Represented)

Andrea D’Addese, Counsel for the Respondent

HEARD in Writing on: November 26, 2017

OVERVIEW

1The applicant TT was injured in an automobile accident on October 11, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2TT applied for accident benefits, and then appealed to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied by the respondent, “Security”.

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Is TT entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from August 21, 2015 to date and ongoing?
2. Is TT entitled to a medical benefit in the amount of $3,129.48 for physiotherapy services, recommended by Era Jalandoni in a treatment plan (OCF-18) submitted on March 17, 2017, denied by the respondent on April 4, 2017?
3. Is TT entitled to interest on any overdue payments from Security?
4. Is Security liable to pay an award under Regulation 664² (“the Regulation”) because it unreasonably withheld or delayed payments to the TT?

FINDINGS

4TT has not proven her entitlement to the benefits she seeks: her application is denied, and the issue of interest is therefore moot.

5Security is not liable to pay an award under the Regulation.

6Security made a request for costs, which is denied.

REASONS

Non-Earner Benefits

7Section 12 of the Schedule provides that an insurer must pay a non-earner benefit (“NEB”) to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident.

8Section (3)(7)(a) prescribes that a person suffers “a complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that “continuously prevents” him or her from “engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.

9The parties agree that the applicant’s pre-accident activities included housekeeping, grocery shopping (including walking to and from shops), cooking family dinners, socializing with friends and attending church services. The applicant is retired.

10TT’s evidence includes:

i. A Disability Certificate (“OCF-3”) by her personal physician, dated October 14, 2014 states that TT suffers a substantial inability to perform the essential tasks of her employment, to carry out her ordinary pre-accident tasks as the primary caregiver to her children and to carry out the housekeeping and home maintenance activities that she normally performed pre-accident. The OCF-3 also indicates that TT was unable to return to work on modified duties.

ii. A Disability Certificate (“OCF-3”) by her chiropractor, dated March 28, 2015 states that TT suffers a complete inability to carry on a normal life and a substantial inability to carry out her ordinary pre-accident tasks as the primary caregiver to her children and to carry out the housekeeping and home maintenance activities that she normally performed pre-accident.

iii. TT’s sworn affidavit, dated September 24, 2018 in which TT describes the physical and psychological injuries she incurred in the accident and details their impacts which include inability to work, inability to complete personal care and housekeeping functions without assistance, loss of recreational activities such as travel, cycling, swimming, dancing, “playing sports” and walks. TT describes herself as a highly functional independent caregiver and provider prior to the accident.

11Security submitted insurer’s examination (IE) reports from a range of medical practitioners, all of them dated July 24, 2015 and all of them rebutting the applicant’s position with respect to her claimed disability:

i. Dr. Terra Seon, psychologist, in her report diagnosed adjustment disorder with anxiety. However, Dr. Seon also reported that TT denied a “want/need for therapy”, claimed to be improving and expressed her “belief that she would continue to improve with the passage of time”. Dr. Seon concluded that TT does not suffer a complete inability to carry on a normal life.

ii. Dr. Irina Safir, MD, opined that TT does not suffer a complete inability to carry on a normal life, based on clinical examination which revealed grossly normal neurological function, no musculoskeletal impairment, and a favorable prognosis.

iii. Denis Polygenis, physiotherapist, found TT able to lift at the Light to Medium Physical Demand Characteristic. Her performance of various test tasks was 83% within expected limits.

12Security then goes on to show that TT, in her self-reporting to various medical practitioners, has contradicted her own claims of disability:

i. TT told Dr. Seon that she continued to engage in social activities and denied any significant change after the accident. TT said that she resumed driving two months after the accident, continued weekly attendance at church, and denied any significant decline in her childcare activities.

ii. Dr. Safir noted that TT reported some of the usual pre-accident housekeeping chores such as laundry and dusting. She did not report any difficulty with personal care tasks. She denied participation in recreational activities prior to the accident.

iii. Following the accident, TT reported to Dr. Judith Pilowsky, psychologist, that she was maintaining healthy relationships with her children, friends and a new partner. She reported keeping busy with full-time studies to be a paralegal and noticed increased motivation to meet her career goals. She planned a trip to Disneyland in 2016.³

13I acknowledge TT’s point, taken from Heath v. Economical Mutual Insurance⁴ that “a claimant who merely goes through the motions cannot be said to be engaging in an activity”, but I note that the court also ruled that “the question is not whether [the claimant] can do the activity, but whether pain or after-pain [sic] practically prevents engaging in activity”.

14Heath also indicates that it is not enough to show changes from pre- to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of her pre-accident activities.⁵

15I find that TT has not met the onus on her to prove that she is entitled to NEBs, for the following reasons:

i. Her submissions do not show that her self-reported pre-accident activities were so exceptional and constrained by pain as to have been “practically prevented”. For example:

a. TT states that she “is able to participate in some of her pre-accident activities but experiences pain and not to the same level as she did before.”

b. Her submissions describe changes to her function, for example limiting grocery shopping to “one or two bags at a time” and cleaning her home in a “modified way” and “piecemeal.”

c. TT notes pain associated with such self-care activities as showering and dressing. She indicates that she now needs assistance with laundry and no longer prepares home-cooked meals.

d. TT notes that she has a formal accommodation at the college where she studies, which is provided to students with disabilities.

In my view, even if taken at face value, these challenges as described do not meet the threshold set by Heath for determining “complete inability to live a normal life”.

ii. TT’s accounting of her post-accident activities to IE assessors and Dr. Pilowsky does not support an assertion that she was continuously prevented from engaging in substantially all of her pre-accident activities. On the contrary, she contradicts the reports noted above and instead reports that she has returned to a substantially normal, active life. TT does not contest Security’s account of her self-reporting to various practitioners, nor does she offer any explanation for the discrepancies between those self-reports and the claims she makes in her affidavit. Accordingly, I give those reports of her words decisive weight in how the applicant’s self-reporting speaks to her claims of complete inability to carry out pre-accident activities.

iii. I found the IE reports persuasive. TT did not challenge their methodology nor did she speak to the clinical results. As noted, she did not deny their account of her self-reporting.

Issue 2: Physiotherapy

16Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.⁶

17TT’s claim for physiotherapy is not accompanied by medical evidence beyond her OCF-18. She did not lead any evidence, such as an affidavit from the physiotherapist Era Jalandoni, who prepared the report, to support her claim.

18To rebut TT’s claim, Security relies on its IE report by Dr. Safir, in which the doctor opined that the claimed benefits were not reasonable and necessary because TT had reached maximum medical recovery. Dr. Safir also found that some of TT’s pain complaints, namely burning pain in the upper right extremity, were unlikely to have been caused by the uncomplicated soft tissue injuries sustained in the accident, given the passage of time and the lack of any report of such pain in earlier examinations.

19I find that TT has failed to meet the onus on her to prove entitlement to the medical benefit she claims.

20Security also submits that TT has not incurred the claimed expense – which she does not dispute. Accordingly, the benefit is not payable.

Request for Interest

21Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

22In this case, TT is not entitled to interest on denied claims, because no payment is due from the insurer.

Award under Regulation 664

23Section 10 of the Regulation permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

24As I have found that TT has not met the onus on her to prove her entitlement to the disputed benefits, there is no basis for an award under s.10 of the Regulation.

COSTS

25Rule 19.1⁷ permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.

26Security has requested costs but has furnished no particulars in support of its request. There is no evidence that I can see that TT has acted in any way that meets the criteria set out in Rule 19.1. SNIC’s requested is denied.

CONCLUSIONS

27TT has not proven her entitlement to the benefits she claims.

28TT is not entitled to interest on overdue payments.

29TT’s request for an award is dismissed.

30Security’s cost request is denied.

Footnotes

1. 1O.Reg. 34/10
2. 2O.Reg 664, RRO 1990, pursuant to s.280 of the Insurance Act, RSO 1990 c.I.8, Part VI.
3. 3Excerpts from clinical notes of Dr. Pilowsky, dated May 5, 2016 to September 22, 2016.
4. 4Heath v. Economical, 2009 ONCA 391, 2009, 95 OR (3d), 785, cited by TT.
5. 5Ibid.
6. 6Scarlett v. Belair, 2015 ONSC 3635
7. 7All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)