The Applicant v. Toronto Transit Commission, 2019 CanLII 27902

Tribunal File Number: 17-009121/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:

the Applicant

Applicant

and

Toronto Transit Commission

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant: Maurice Benzaquen

Counsel for the Respondent: Chad Townsend Justin Lim

In-Person Hearing: December 10 - 14, 2018

OVERVIEW

1The applicant was injured as a pedestrian when she was hit by a bus on January 22, 2016. The applicant claims that as a result of the accident, she sustained physical injuries to her face, neck, shoulders, back, arms, hips and knees. She also claims she sustained psychological injuries which have resulted in concentration issues, irritability, anxiety, stress and depression. The applicant sought benefits from the respondent, the Toronto Transit Commission (“TTC”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2The TTC denied the applicant’s claim for Non-Earner Benefits (“NEBs”) on the basis that she does not suffer from a complete inability to carry on a normal life, as required by the Schedule. TTC also denied the applicant’s claim for attendant care benefits (“ACBs”) and three treatment plans covering physiotherapy and chiropractic treatment, on the basis that these benefits were not reasonable and necessary. The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

3A case conference was held but the parties were unable to come to a resolution and proceeded to an in-person hearing.

ISSUES IN DISPUTE

4The following are the issues to be decided, as per the Case Conference Order dated August 15, 2018:

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

ii. Is the applicant entitled to receive a non-earner benefit in the weekly amount of $185.00, for the period of July 22, 2016 to date and ongoing, denied on August 24, 2016?

iii. Is the applicant entitled to attendant care benefits in the monthly amount of $397.02, for the period of January 22, 2016 to date and ongoing, denied on August 24, 2016?

iv. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,460.72 for physiotherapy treatment recommended by Mary Kazem from Humber River Physio, denied on August 24, 2016?

v. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,023.72 for chiropractic services, recommended by Dr. S. Kobrossi, denied on August 24, 2016?

vi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,113.72 for chiropractic services, recommended by Dr. S. Kobrossi, denied on September 26, 2016?

vii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

5I find that the applicant is not entitled to NEBs for the period in dispute as she has not demonstrated that she has a complete inability to carry on a normal life as a result of the accident.

6I find that the applicant is not entitled to attendant care benefits for the period in dispute as she has not demonstrated an economic loss.

7I find that the applicant is entitled to payment for the physiotherapy treatment and one but not both of the chiropractic services, as I find that they are reasonable and necessary to treat her ongoing pain.

8Accordingly, the applicant is entitled to interest on any overdue benefits, pursuant to s. 51.

9On the issue of an award, I find the applicant is entitled to $1,000.00, plus interest, pursuant to s.10 of O. Reg. 664.

ANALYSIS

Non-Earner Benefits

10In order to receive NEBs, the applicant must prove that she suffers a complete inability to carry on a normal life as a result of the accident.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 them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.³ On the evidence, I find that the applicant is not entitled to NEBs for the period in dispute.

11The seminal authority of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident.⁴ The evidence led concerning the applicant’s pre-accident activities and how her impairments as a result of the accident have led to a complete inability to carry on with them post-accident was, in my view, unpersuasive and inconsistent.

12During the hearing, a significant portion of the applicant’s testimony focused on her pain—primarily her neck, upper back, shoulders and lower body pain—and how this pain, when combined with her psychological impairments, impedes her day-to-day living. Where 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 those activities.⁵ On the applicant’s testimony of her daily activities, I find that she does suffer from some pain, as there is evidence in the documents that she reports the pain can rise to 9/10 on the pain scale and that she treats it primarily with pain medications such as Tylenol 3 and Oxycocet. However, although I think it is evident that the applicant experiences pain, I find on the evidence and testimony that her pain does not practically prevent her from the majority of her independent self-care tasks or engagement in her daily activities.

13The Heath test provides that the applicant may identify their “valued” activities of daily living and submit how, as a result of the accident, their most valued activities have fundamentally changed, thus resulting in a complete inability to carry on a normal life. Activities identified by an applicant as being highly valued attract more weight. The applicant’s five most valued activities were clearly laid out during the hearing: school, family, weight lifting, her social life and personal care. While I found this exploration of the applicant’s valued activities to be helpful for context, I did not find that the details of her valued activities were particularly helpful in proving that she has a complete inability to carry on a normal life or, as mentioned above, that the pain she has as a result of the accident practically prevents her from engaging in these activities.

14With regards to schooling, I find that the applicant’s grades at [College] actually increased post-accident, which undermines her claim that her studies were severely affected. Despite the applicant’s contention that she had to retake three semesters because of the accident and that the increase in her marks was based on her post-accident accommodations and her having to retake the same examinations that had not been changed, I find that the evidence and testimony suggests otherwise. For instance, the academic transcript provided reveals that the applicant was on academic probation prior to the accident, which was the basis for why she was forced to redo three semesters. On cross-examination, the applicant also revealed that she did not take school as seriously before the accident, that her social life was impeding her studies and that post-accident, she has “nailed down.” Further, her individualized education plan, which includes accommodations such as note-taking assistance, extended time for examinations and recording privileges, actually pre-dates the accident and was based on assessments for accommodations completed when the applicant was in the tenth grade and not as a result of the accident. While it became clear that her accommodations pre-date the accident, the applicant only provided the Tribunal with letters of accommodation beginning in January 2017.

15With respect to her family life and her role within the family unit, the applicant submitted that prior to the accident, she was the “right-hand man” of the family. When pressed to provide details on what this entails, the applicant explained that her parents used to rely on her for guidance and support and that, post-accident, they now turn to her other siblings. She testified that she has not returned to her role in the family since. While I am not convinced that this is the type of daily activity contemplated by Heath, I find it problematic for several reasons. First, no other lay witnesses were produced to provide context on the applicant’s role as “right hand man” in the family; the Tribunal can only rely on the applicant’s explanation of her role, which was incredibly vague. Second, during the year and a half prior to the accident, the applicant lived in off-campus housing away from her family. As she did not have a driver’s license, she explained that it would take her one and a half hours to get to her family home via public transportation (ironically, she relies heavily on the TTC). In my view, this would present a difficult situation for anyone claiming to be a central support in the family’s day-to-day needs. Third, the applicant now resides at home with her parents which, presumably, now allows her to be there for support and guidance on a daily basis, as she claims she was before.

16The applicant’s third valued activity is weight-lifting. By all accounts, weight lifting, physical fitness and attending at the gym were, indeed, valued pre-accident activities of hers, as she testified that she attended at the gym up to six days a week. Post-accident, I do find that her fitness regimen was altered as a result of her impairments and pain, at least in the first few months afterwards. The applicant argues that, post-accident to-date, she has still not “re-engaged” in her regimen to the same level. Although records from her personal trainer indicate that this may not be as a result of her physical impairments, I do note she continues to complain of pain in recent records. In any event, I do not find that her impairments continuously prevent her from engaging in her fitness regimen or that her pain practically prevents her from same.

17On her social life, the applicant submitted that prior to the accident, she had good relationships with her boyfriend and friends. She indicated she was in a relationship, used to go out with her friends two to three times per week (clubs, bars, bowling, etc.) and that post-accident, she “couldn’t handle it.” As a result of the accident, her relationship with her boyfriend ended and she was unable to see her friends or go out on social events because she was bed-ridden. Again, the only testimony provided on this activity was the applicant’s own. While I have no reason to doubt the applicant’s contention, I do note that there is evidence in the file that the applicant’s social life has “normalized” back to pre-accident levels, specifically in her self-reporting in the psychological report.

18Last, with regards to personal care, I find that it is likely that the applicant required some assistance with her personal care in the days and weeks following the accident. However, I am not persuaded that she could not conduct her personal care for five months post-accident, as submitted. The applicant testified that her limitations were extremely severe post-accident: she needed help dressing, bathing, eating and taking her medication. To date, she still has issues with meal preparation and pain, especially when trying to wash and comb her hair and removing her sports bra. While there is some support for the applicant’s contention in the medical records—and I note that she wore the same clothes during all four days of the hearing—I also find, consistently in the medical records, that the applicant does not have a significant, functional orthopedic impairment or mobility issue that would continuously or practically prevent her personal care. In fact, in a report dated less than two months after the accident, the applicant’s own attendant care assessor indicates that the applicant had resumed all of her pre-accident self-care activities.⁶

19Finally, I have no doubt that getting hit by a bus constituted a traumatic event for the applicant. Accordingly, her recollection of her life in the days, weeks and months following the accident likely differs from what occurred or has been exaggerated in her mind ever since. I find that the in-person testimony revealed significant disparities between the applicants self-reporting and the reports and records before the Tribunal that, taken as a whole, are difficult for the applicant to overcome.

20For instance: the applicant’s alleged post-traumatic stress disorder and concussion diagnoses are not supported. Referrals to a neurologist, physiatrist and psychiatrist by her family physician—at the applicant and her counsel’s request—were not followed up on by the applicant despite her claims of headaches, chronic pain and depression. In the majority of the records, her pain is referred to as “intermittent” despite her contention that it is chronic and severe. No fractures, tears or impairments of a musculoskeletal variety are ever identified. Additionally, there are significant gaps in the applicant’s reporting to her family doctor of her accident-related impairments that, in my view, are not indicative of an individual that is reaching out for help. The applicant testified that she went to see her doctor every other day in the two months following the accident for treatment and medication and then every three days for a month after that, however, her OHIP records and prescription summaries suggest that her recollection differs significantly from the reality. While the applicant never worked before the accident, she indicated that she was able to secure employment at Tim Horton’s for four months in the summer of 2017 with accommodations. However, no employment records or clinical notes from her doctor indicating that she was approved for workplace accommodations were provided. In the post-accident notes of her family doctor, it is noted that she is able to move freely, that her knee wounds have nearly healed, that her anxiety attacks are down and that she no longer requires medication. While not determinative individually, these inconsistencies, in my view, compound to undermine the applicant’s claim that she has a complete inability to carry on a normal life as a result of the accident.

21For these reasons, I find that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident and is therefore not entitled to NEB’s for the period in dispute.

Attendant Care Benefits

22In order to receive ACBs, the applicant must establish that the services provided by her mother were reasonable and necessary and that the expenses were incurred, pursuant to s. 19(1)(a) of the Schedule. Section 3(7)(e) identifies three components to prove that an service is incurred: 1) the applicant needs to have received the goods or services related to the expense; 2) the applicant has to have paid the expense or promised to pay the expense; and, 3) the applicant’s mother must have provided the services in the course of her employment, occupation, or profession, normally engaged in, but for the accident or sustained an economic loss as a result of providing the services for the applicant I find on the evidence that the applicant has failed to prove that the services were incurred. Further, the attendant care she did receive occurred prior to the submission of a Form-1, as required by s. 42(5). Accordingly, I find that she is not entitled to payment for ACB’s.

23On the applicant’s testimony, I find, on a balance of probabilities, that her mother provided her with some attendant care during the first few days and possibly weeks post-accident. Given her injuries, I find that it would have been reasonable for her mother to care for her during this initial period of recovery. While I am not prepared to accept the applicant’s testimony that her mother was forced to carry her from her bed to the toilet and bathtub every day for several months and that she cloth-washed her and fed her during same⁷, I am prepared to accept that the applicant would have received some form of attendant care from her mother during this time. However, on the evidence provided, it is difficult to determine what exactly her mother did do for her during this period, as her mother did not testify. In my view, it is difficult to conceive how being carried to the washroom every day for four months by your mother does not come up in any of the medical records available.

24In any event, I find the third component of the incurred definition fatal to the applicant’s entitlement, as I find that her mother did not suffer an economic loss while caring for the applicant during this period. On the applicant’s testimony, it was revealed that at the time of the accident and during the attendant care period, her mother was not employed but was forced to turn down an offer of employment in pharmaceutical manufacturing that was set to pay her $20 per hour. However, cross-examination revealed that the applicant’s mother suffers from schizophrenia and has actually not worked for several years. With respect, I find the applicant’s claim that her mother was forced to turn down employment in order to provide her with attendant care to be tenuous at best. Other than her testimony, the applicant provided the Tribunal with no proof to substantiate her claim that the ACBs were incurred. The applicant did not make her mother available as a witness. No offer letter of employment or correspondence indicating same was submitted. The applicant argued that because she provided the Tribunal with the details of her mother’s job offer (namely the amount of hourly pay and the type of job) and that credibility is not an issue, that the definition of incurred is satisfied. I disagree. Without further evidence, I find that the applicant has not proven that her mother sustained an economic loss. Therefore, I find that the attendant care is not incurred.

25Compounding the above is the fact that the services the applicant did receive from her mother occurred before she provided TTC with a Form-1—otherwise known as an Assessment of Attendant Care Needs—which is the form required by s. 42(5) of the Schedule. It is well-settled that an insurer is not required to pay an expense related to attendant care needs which is incurred prior to the submission of a Form-1. While the applicant did provide the Tribunal with a retroactive Form-1⁸ and submitted that, on these facts, attendant care should be considered and awarded retroactively, I still find that the applicant has failed to prove that the ACBs were incurred.

26As a result, I find that the applicant is not entitled to payment for ACB’s.

Physiotherapy Treatment

27I find on the evidence that the applicant is entitled to payment for the treatment plan for physiotherapy as I find that her reports of pain are consistent, credible and ongoing and therefore treatment is reasonable and necessary.

28In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to ss. 14-17. I find that the physiotherapy is reasonable and necessary because the applicant continues to experience pain post-accident (self-reporting at times 9/10 on the pain scale), her pain is lingering (she continues to complain of pain two and a half years post-accident) and that it is reasonable for a professional to treat her in order to prevent her pain from becoming chronic in nature as a result of the accident (as she argues that her psychological impairments are a contributing cause of her pain). Pain reduction, increase in strength and increased range of motion are legitimate goals for a treatment plan. On review of the OCF-18, I find these goals listed in Part 9. In addition, the plan indicates that the applicant reports a 70-80% improvement as a result of her initial physiotherapy. In my view, if the applicant has experienced that much improvement as a result of previous physiotherapy sessions, then it would be imprudent at this stage to deny her the potential of a 100% recovery.

29As a result, I find that twelve sessions of additional physiotherapy treatment is an appropriate and proportional plan to continue addressing the applicant’s pain, so that she may work towards her maximal medical recovery from the accident. On this basis, I find the treatment plan in the amount of $1,460.72 to be reasonable and necessary.

Chiropractic Treatments

30I find on the evidence that the applicant is entitled to payment for one of the treatment plans for chiropractic treatment as I find that her reports of pain, specifically in her upper back, neck and shoulders, to be consistent, credible and ongoing and therefore treatment is reasonable and necessary.

31In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to ss. 14-17. I find that the chiropractic treatment plan in the amount of $1,023.72 for chiropractic services, recommended by Dr. Kobrossi, to be reasonable and necessary. As with the physiotherapy treatment, I find additional chiropractic treatment would be beneficial to the applicant’s recovery due to her recurring complaints of pain post-accident, the fact that her pain complaints are lingering and that treatment from a professional to help alleviate the lingering pain in her upper back, neck and shoulders is necessary in order to help her achieve maximal medical recovery. On the evidence, I find that the pain in her upper back, neck and shoulders impedes her daily activities the most and the goals for recovery, being the same as those for the physiotherapy, are modest and, in my view, achievable, based on her previous treatment. Further, I find it encouraging that the applicant attended at every previous treatment session approved by TTC. For these reasons, I find that the ten sessions of chiropractic treatment, combined with the physiotherapy already awarded, forms a reasonable strategy to address the applicant’s lingering pain from the accident.

32I find that the second treatment plan in the amount of $1,113.72 for naturopathic (chiropractic) services, also recommended by Dr. Kobrossi, is not reasonable and necessary. I find that, given the close timeline of the treatment plans, it would result in a duplication of services before an outlook on the benefits and recovery from the first round of sessions of physiotherapy and chiropractic treatment would be realized.

33Accordingly, the applicant is entitled to payment for the chiropractic treatment plan in the amount of $1,023.72 for chiropractic services, as it is reasonable and necessary. The applicant is not entitled to payment for the naturopathic (chiropractic) treatment in the amount of $1,113.72, as it is not reasonable and necessary.

Interest

34As I have found that the applicant is entitled to physiotherapy and chiropractic treatment, it follows that she is entitled to interest on the overdue benefits, pursuant to s. 51 of the Schedule.

Award

35A recurring theme throughout the applicant’s submissions focused on TTC’s handling of her claim. Specifically, the applicant argues that an award under O. Reg. 664 is justified as a result of TTC’s unacceptable adjusting of her file, a lack of transparency in its internal processes and a breach of its duty of good faith. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which the applicant is entitled if the Tribunal finds that TTC has unreasonably withheld or delayed payments. On the facts and evidence before me, I find that an award is appropriate.

36TTC was ordered to produce the complete accident benefits file and all of its adjuster’s log notes related to the applicant’s claim.⁹ After motions dispensed of one of the pages, TTC only produced a single page of adjuster’s notes related to a file that spans two and a half years. The single page consisted of a memo from a previous adjuster on the file. In total, there were three adjuster’s on the applicant’s file over the life of the case, and a fourth if TTC’s investigation adjuster is included. The applicant contends that the lack of adjuster’s notes, log notes or even internal memos between employees handling the applicant’s file is highly prejudicial to her, as it robs the applicant and her counsel of the opportunity to scrutinize the decisions TTC made in its denials and its reasons for the denials. Further, the applicant argued that the lack of adjuster’s notes is the proverbial “canary in the coal mine” for TTC’s mishandling of the applicant’s claim and breach of its duty of good faith from the outset.

37Indeed, the applicant called Edwin Chan, the current adjuster, and Elitza Slovova, the previous but not the original adjuster, to provide testimony on TTC’s handling of the claim. Ms. Slovova indicated that there are no internal communication processes at TTC and that she only ever reviewed the file once in its entirety. Similarly, Mr. Chan revealed that he had only ever reviewed the file twice in its entirety and maintained that there were no documents evidencing an internal decision and no process to communicate reasons between the adjuster’s on the file. Both adjusters agreed with the applicant that the duty of good faith entails reviewing all of the information available, including the medical reports of both parties, before making a determination on entitlement and providing medical or other reasons for that decision.

38Adding to the mystery is a cheque for NEBs and a letter explaining the reason for the cheque, which was sent to the applicant on December 4, 2018. Mr. Chan’s explanation for the remittance was that, based on his review of the file, NEBs were not paid to the applicant due to a medical stoppage and that NEBs were not payable after the six month period. On his review and on his supervisor’s direction, TTC determined that NEBs were owing, with interest, and a cheque was issued to the applicant in the amount of $1,182.34 for the period of July 22, 2016 to August 25, 2016 only.

39In closing submissions, TTC conceded that NEBs were the one benefit that “was certainly delayed” and that the cheque for same was issued “quite a bit late.” Further, TTC argued that the decision was not unreasonable; it was an error by the original adjuster, yes, but not an unreasonable decision. TTC claims that its NEB obligation was missed but it was realized by the TTC and rectified before it was even raised by the applicant. On this basis, TTC argues that the award is the only issue where there is a need to weigh the evidence to determine whether its practice was unreasonable and whether its reason for the delay is sufficient.

40I find that an award is appropriate in these circumstances based on the lack of transparency TTC afforded the applicant during the adjustment of her file. While I am alive to TTC’s submission that it acted reasonably and in good faith in rectifying the NEB issue, the regulation does not confine the Tribunal’s consideration to the single handling of an issue in a vacuum, but permits it instead to consider the conduct of an insurer throughout the entire adjustment of the file. In this case, I find that TTC breached its duty to adjust the applicant’s claim continuously in good faith, resulting in the unreasonable withholding and delay of benefit payments.

41While comment on TTC’s internal processes as a whole is beyond the scope of this hearing, in my view, the lack of adjuster’s notes or log notes—or really, any evidence of internal communication between individuals handling such a voluminous file at any time during the life of the claim—over the span of two and a half years is, quite frankly, bizarre and unprecedented. At times, TTC seemed to double down on its lack of transparency in its processes, submitting that relying blindly on the results of Insurer’s Examinations and issuing denials without evidence of internal decision-making is normal industry practice. I disagree. To echo the applicant’s counsel, I do find that this may be “the only case ever where there are no notes, ever.” However, while I was not provided with contrary evidence to prove that TTC does, in fact, have notes or logs that were not produced, I do not accept that a sophisticated party like the TTC could continue to exist and function without some sort of internal record-keeping process to organize its business, continuously adjust active claims and convey information between employees who, evidently, come and go with some regularity.

42Accordingly, I exercise the discretion afforded by statute and find that TTC is liable to pay the applicant an award in the amount of $1,000.00, with interest, pursuant to s. 10 of O. Reg. 664, representing 40% of the benefits awarded in this matter.

CONCLUSION

43For these reasons, the applicant is not entitled to NEB’s for the period in dispute or attendant care benefits. The applicant is entitled to the payment for physiotherapy services and one of the chiropractic treatment plans. Interest is payable on any overdue benefits.

44I find that the applicant is entitled to an award in the amount of $1,000.00, with interest, pursuant to s. 10 of O. Reg. 664.

Released: January 4, 2019

___________________________

Jesse A. Boyce, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 [“Heath”].
3. 3O. Reg. 34/10, at s. 3(7) (a).
4. 4Ibid.
5. 5Heath, supra note 2 at para 50.
6. 6Occupational Therapy In-Home Assessment of Inna Dainov, dated March 17, 2016, at page 25.
7. 7There is brief mention in the occupational therapy records that the applicant suffered from mobility issues. However, the clinical notes and records of the applicant’s family doctor do not mention that she had to be carried to the washroom or required assistance to attend at the doctor’s office. Similarly, none of the other reports in evidence indicate mobility issues or attendant care requirements to this degree.
8. 8The retroactive Form-1, dated March 17, 2016, calculated T.I.’s ACBs at $1,276.56 per month, on the basis that she required 1270 minutes of care per week for dressing, grooming, feeding and bathing.
9. 9Case Conference Order, dated August 15, 2018.