Citation: K.T. vs. Aviva Insurance Company of Canada, 2019 ONLAT 18-003870/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:
K.T.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
Appearances:
For the Appellant:
K.T., Applicant
David Tomovski, Counsel
For the Respondent:
Lynn Highley, AB Specialist
Louise Kanary, Counsel
Interpreter:
Flamur Selmani, Albanian
Court Reporter:
J.L.D.
Heard In-Person:
Hearing on December 17-18, 2018
OVERVIEW
1The applicant (“K.T.”) was involved in a motor vehicle accident (“the accident”) on August 2, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2K.T. applied for and received some benefits from the respondent (“Aviva”). With respect to other benefits which were denied, K.T. applied to the Licence Appeal Tribunal (the “Tribunal”).
3I must determine if K.T. is entitled to a non-earner benefit. I also must decide whether K.T.’s injuries are defined as predominantly minor by the Schedule and thus subject to the $3,500 treatment limit, and if they are not, I must determine K.T.’s entitlement to two treatment and assessment plans which Aviva has denied.
ISSUES IN DISPUTE
4The substantive issues to be decided are:
(i) Is K.T. entitled to a non-earner benefit in the amount of $185.00 per week for the period of January 24, 2017 to August 2, 2018 because he suffers a complete inability to carry on a normal life?
(ii) Is K.T.’s claim for a medical benefit in the amount of $2,283.97 for chiropractic treatment recommended by Islington Village Health, submitted in a treatment plan dated May 8, 2017, reasonable and necessary?
(iii) Is K.T.’s claim for a cost of examination expense in the amount of $2,200.00 for a chronic pain assessment recommended by Alcat Assessment, submitted in a treatment plan dated February 16, 2018, reasonable and necessary?
(iv) Is K.T. entitled to interest on any overdue payment of benefits?
(v) Is K.T. entitled to an award under Regulation 664 because Aviva unreasonably withheld or delayed payment of a benefit?
RESULT
5Based on a review of all the evidence put before me, I find that K.T. does not suffer a complete inability to carry on a normal life as a result of injuries sustained in the subject accident and is therefore not entitled to a non-earner benefit.
6K.T.’s physical and psychological injuries meet the definition of ‘minor’ under the Schedule therefore it is unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.
7As such, K.T. is not entitled to an award.
ANALYSIS
8I will begin my analysis by first considering how K.T.’s physical impairments impact both his entitlement to a NEB and his status in relation to the MIG, then I will consider how his psychological impairments impact those benefits.
(a) Non-Earner Benefit and MIG
Non-Earner Benefit – The Law
9The test for entitlement to a non-earner benefit is set out within section 12 (1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) 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.
10The Ontario Court of Appeal, in the 2009 decision of Heath v. Economical Mutual Insurance Company2, outlined several principles to be considered when determining an insured person’s entitlement to a non-earner benefit. These principles guide my analysis regarding K.T.’s entitlement to a non-earner benefit. These principles include:
(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those activities following the accident.
(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
(iii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on the activities which were of greater importance to the applicant’s pre-accident life.
(iv) The applicant must prove that his/her accident related injuries continuously prevented him/her from engaging is substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
(v) Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. Therefore, “engaging” should be interpreted from a qualitative perspective.
(vi) If pain is the primary reason which is preventing an applicant from engaging in their former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.
11Section 12 (3) (a) of the Schedule notes that the insurer is not required to pay a non-earner benefit to an insured person for the first 4 weeks after the onset of a complete inability to carry on a normal life and up to a max of 104 weeks post-accident.
Minor Injury Guideline – The Law
12The Minor Injury Guideline (‘MIG’)3 establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.
13In the decision of Scarlett4, the Divisional Court reviewed the minor injury provisions in the Schedule, and found that they were a limit on an insurer’s liability, but not an exclusion from coverage, and thus the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. Applying Scarlett, the onus is on K.T. to prove that his entitlement to medical benefits is not subject to the MIG, and its prescribed $3,500.00 limit for minor injuries.
K.T.’s physical impairments are properly classified as “minor injuries” and also do not establish that he suffers a complete inability to carry on a normal life as a result of the accident
14For the reasons that follow, I find that the medical evidence establishes that K.T.’s physical injuries fall within the definition of a “minor injury” as listed in section 3(1) of the Schedule, and while K.T. suffers from significant psychological impairments, those psychological impairments are not accident-related. Regarding the non-earner benefit, the evidence establishes that K.T. did not suffer any physical injuries that cause him to suffer a complete inability to carry on a normal life as a result of the subject accident. Equally important, in applying the relevant principles from Heath, K.T. does not direct me to any evidence that establishes what significant and important activities he engaged in pre-accident that he is no longer able to participate in post-accident.
15In his argument to be removed from the MIG, K.T. relies upon a Disability Certificate, dated August 15, 2016, wherein K.T. is listed as unable to carry on a normal life due to the following injuries: sprain and strain of ribs and sternum; sprain and strain of shoulder joint; internal derangement of knee (suspected); sprain and strain of hip; sprain and strain of calcaneofibular ligament, ankle; sprain and strain of cervical spine; sprain and strain of lumbar spine; open wound of lower leg (around left knee and left ankle); myalgia; radiculopathy (left leg feeling numb); headache; nonorganic sleep disorders; nervousness and nightmares. I note that this list of impairments is not persuasive without any detailed supporting evidence as to why these impairments took K.T. outside of the MIG.
16The treatment plan (‘OCF-18’) prepared by Dr. Jade Egonia, Chiropractor, dated November 29, 2016 (one of the treatment plans in dispute), lists similar physical injuries as the Disability Certificate. In addition, Dr. Egonia affirmed the question of whether the impairment is predominantly a minor injury as referred to under the MIG, and recommended further treatment within the $3500.00 limit.
17In a second OCF-18 dated April 11, 2017, Dr. Egonia again lists the same physical injuries as the disability certificate. However, Dr. Egonia responded in the negative to the question of whether the impairment is predominantly a minor injury. Under the ‘Activity Limitations’ section of the OCF-18, Dr. Egonia indicated K.T. is experiencing “pain on his low back and left glute muscles…he has not returned to performing recreational sports, which he used to do a lot before. He reports anxiety and is taking depressive medication that have affected his ability to enjoy social activities”.
18Aviva relies upon its assessment report dated June 19, 2017 prepared by Dr. Shawn Henderson, Chiropractor. Dr. Henderson concludes that K.T. sustained sprain/strain and contusive injuries predominantly over the left side of the body as well as abrasion over the left medial ankle region. Further, given that it had been ten months since the accident, Dr. Henderson opined that further facility-based treatment is not required for the soft tissue injuries sustained. He further notes that there are no objective findings of physical impairment which would suggest the need for further active or passive therapy.
19I find the report of Dr. Henderson persuasive and am convinced by his conclusions. He conducted a thorough physical examination of K.T., who demonstrated normal strength and flexion throughout the clinical examination and there was no evidence of swelling, inflammation or muscle wasting. By contrast, I did not find K.T.’s medical evidence, the Disability Certificate and treatment plans, persuasive in establishing that his physical injuries are not predominantly minor.
20I note that there were no recommendations from any treatment providers for further chiropractic treatment, aside from the OCF-18 author, Dr. Egonia/Islington Village Health. The only other recommendation for any treatment was by Dr. Quigley (Primary Health Care), but his recommendation isn’t for chiropractic treatment, it’s for continued physiotherapy. I do not have a physiotherapy treatment plan before me; therefore I cannot consider this recommendation.
21Accordingly, I conclude that K.T.’s physical injuries are soft tissue injuries that fall within the MIG.
22Similarly, regarding the non-earner benefit, K.T. has not satisfied his onus to establish that he has suffered a complete inability to carry on a normal life as a result of physical injuries suffered in the subject accident. He largely relies on the same evidence, and as mentioned above, the evidence points to those injuries as being relatively minor.
23Despite the above findings, I must still determine if K.T. has accident-related psychological impairments, and if so, if they caused him to suffer a complete inability to carry on a normal life.
K.T. does not suffer a psychological impairment as a result of the accident that removes him from the MIG or cause him a complete inability to carry on a normal life
24For the reasons that follow, I also find K.T. did not suffer a complete inability to carry on a normal life due to any accident-related psychological impairment. K.T. produced medical evidence from his community health care provider, Primary Health Care, LAMP Community Health Centre (‘LAMP’), which supports that K.T. suffers from major depression. Further medical evidence from the Centre for Addiction and Mental Health (‘CAMH’) diagnoses K.T. with symptoms of depression and post-traumatic stress disorder (‘PTSD’). K.T.’s medical evidence does not adequately support that his depression and PTSD was caused as a result of the accident.
25As a recent refugee from Albania, K.T. had a significant past which I find is a major contributor to his psychological well-being. Prior to coming to Canada in 2015, K.T. had completed university, was a wrestling coach and a military officer and has a family (wife/child). K.T. reported to CAMH, “feeling down and depressed since coming to Canada”. K.T. also noted that the refugee process had impacted him psychologically, stating, he had “difficulty concentrating, sleeping, and had feelings of anxiety” when notified of his refugee status hearing date.
26In his evidence, K.T. described an incident where a friend was shot when he was with him in a car. K.T. provides further evidence of his life in Albania where he was targeted by criminals, assaulted on at least one occasion, and he had to escape and leave his family. K.T. is constantly worried something may happen to his family. He is in regular contact (bi-weekly) with his wife, but doesn’t know how he will get her out of the country.
27The medical evidence from CAMH/LAMP (Dr. Andermann), shows that K.T. experienced non accident-related anxiety and stress. During a visit on November 17, 2016, Dr. Andermann notes K.T. “stopped taking sertraline (psychiatric medication) ...he has not noticed any difference off medications…he continues to feel very stressed about his immigration situation”. Dr. Andermann specifically notes in her January 26, 2017 report, “symptoms of depression and PTSD, following his difficult experiences in Albania leading to his refugee status”.
28At the August 3, 2017 visit, one year post-accident, K.T. requested an urgent meeting with Dr. Andermann before his refugee hearing on August 4, 2017. K.T. reported to Dr. Andermann he had been working in condo construction for the last few months and was “feeling somewhat better until his anxiety relapsed when he received his (refugee) hearing date”. Dr. Andermann also noted that K.T. “is no longer taking his psychiatric medications and says he stopped them on his own a few months ago”.
29Additional evidence from CAMH (Dr. Andermann) revealed that when K.T. was asked what would happen if he returned to Albania, he said “it’s impossible to think about that with the problems I have….my life is in danger if I do that…there are people who want me dead because of a blood feud.”
30Despite the accident, I find that K.T.’s evidence points to his personal situation playing a crucial rule in his psychological well-being, none of which was caused by the accident. I find K.T. has not demonstrated on a balance of probabilities that he has any psychological impairments related to the accident that have prevented him from engaging in substantially all of the activities which he participated in and enjoyed prior to the accident.
31I find those immigration issues to be a set of very unfortunate and serious circumstances, which have a profound impact on K.T.’s psychological well-being. Not only the concern for his own safety, but that of his young family as well. However, turning to present day, K.T. submitted that at the time of the subject proceeding, he still had not found out about the status of his refugee claim, which caused him to be stressed, depressed, lose his appetite at times, and have a lack of interest in socializing (also caused by the various depression medications).
32From a psychological standpoint, I do not find that the subject accident is the sole or even a materially significant cause of K.T.’s psychological impairments. I find that the evidence from a psychological perspective, points to the significant personal circumstances as the key cause of K.T.’s major depression and PTSD. As such, I find that psychologically, K.T. does not suffer a complete inability to carry on a normal life ‘as a result of the accident’.
33In conclusion, while I readily acknowledge that K.T.’s psychological impairments clearly cause some or even a significant interference with his ability to carry on a normal life, I do not find that those impairments rise to the level of a “complete inability” as defined under the Schedule. More importantly, the evidence points to that those impairments are not “as a result of the accident,” with the significant personal circumstances as the key cause of K.T.’s major depression and PTSD and the subject accident played only a minor role. Thus, those psychological impairments, do not cause K.T. does not suffer a complete inability to carry on a normal life as a result of the accident.
(b) The Treatment Plans
34As I have found K.T.’s injuries to be “minor”, and the MIG limit has been exhausted, it is not necessary for me to consider the treatment plans or any applicable interest.
(c) K.T. is not entitled to an Award.
35Since I found that no benefits are payable, Aviva cannot have been found to have unreasonably withheld payment. As a result, an award is not warranted in the circumstances of this case.
CONCLUSION
36K.T. sustained predominantly minor physical and psychological injuries that fall within the MIG. As such, K.T. does not suffer from a complete inability to carry on a normal life as a result of the accident; therefore, there is no entitlement to a non-earner benefit. Further, K.T. is not entitled to payment for the treatment plans claimed in this application. K.T. is not entitled to an award. His application is dismissed.
Released: July 17, 2019
Derek Grant Adjudicator
Footnotes
- O. Reg. 34/10.
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
- Minor Injury Guideline, Superintendent’s Guideline 01/14.
- Scarlett v. Belair Insurance, 2015 ONSC 3635```