L.F. v. Aviva Insurance Canada, 2019 CanLII 76978

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:

L.F.

Appellant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Ian Little, Counsel

For the Respondent:

Thomas Hughes, Counsel

Court Reporter:

Sarah Sheppard

HEARD:

In writing and by Teleconference on March 18, 2019

OVERVIEW

1L.F., the applicant was injured in a motor vehicle accident on November 20, 2015 and applied for accident benefits to Aviva Insurance Canada (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The applicant applied for a non-earner benefit and for a medical benefit for chiropractic services. Both benefits were denied by the respondent on the basis that she did not meet the test for a non-earner benefit and the treatment plan is not reasonable and necessary.

2The evidence at this hearing was submitted by way of oral and written submissions and affidavit evidence from the applicant. The applicant and Dr. Solomon, psychologist were cross examined by teleconference.

ISSUES

3The following are the issues to be decided:

a. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from September 9, 2016 to date and ongoing submitted on January 13, 2016 and denied on August 25, 2016?

b. Is the applicant entitled to a medical benefit for $1,280.00 for chiropractic services recommended by Dr. Toffy Kobrossi in a treatment plan submitted on November 7, 2016 and denied on November 17, 2016?

c. Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

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

RESULT

4For the reasons set out below, I find that the applicant is not entitled to a non-earner benefit from September 9, 2016 to date and ongoing, is not entitled to a medical benefit for chiropractic services and is not entitled to an award under Ontario Regulation 664. Interest is not payable as there is no overdue payment of benefits.

Non-Earner Benefit

5The test for entitlement to a non-earner benefit is set out in sections 3(7)(a) and 12(1) of the Schedule. Section 12 (1) states the insurer shall pay a non-earner benefit to an insured in the amount of $185 per week who sustains an impairment as a result of an accident if the insured person satisfies that the applicant 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. 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.

6The parties referred to the case of Heath v. Economical Mutual Insurance Company,¹ which outlines several principles to assess entitlement to a non-earner benefit. In summary, these include:

(a) A comparison of the applicant’s daily life activities before and post-accident.

(b) A consideration of all the applicant’s pre-accident activities but greater weight can be placed on activities seen as more important to the applicant pre accident.

(c) 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.

(d) The accident related injuries must continuously prevent an insured from engaging in substantially all of their pre-accident activities. The disability has to be uninterrupted.

(e) The evidence must demonstrate that the insured has significant restrictions in performing an activity as a result of the injuries sustained in the accident.

(f) “Engaging in” should be interpreted from a qualitative perspective. 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.

7The applicant relies on her affidavit evidence, evidence provided in cross examination, the notes of her family doctor and report from her treating psychologist, Dr. Solomon, to support her claim that as a result of the injuries sustained in the accident she meets the test for a non-earner benefit and the treatment plan for chiropractic services is reasonable and necessary.

8The respondent relies on its psychological, physiatry, chiropractic and in-home assessments combined with the video surveillance evidence to support its position that the applicant does not meet the test for a non-earner benefit and the chiropractic treatment plan is not reasonable and necessary.

9Based on the totality of the evidence and for the reasons set out below, I find the applicant has not established that she is entitled to the benefits sought.

ANALYSIS

Disability Certificate and the Clinical Notes and Records of the Family Doctor

10The applicant attended at the hospital the day after the accident. Those records as well as the disability certificate (OCF3)² completed by Dr. Sasson and the Clinical Notes and Records of Dr. Sasson (the Notes)³ indicate the applicant sustained soft tissue injuries to her shoulder, neck and upper back from the accident. Although the OCF-3 states the applicant is unable to perform housekeeping and home maintenance, there is no outline of the applicant’s pre-accident activities and how they are impacted by the injuries from the accident, as is required in Heath.

11The Notes also do not provide any description of the injuries and how they impacted her post-accident activities of daily living. The Notes dated February 2016, March 2016 and August 2016, indicate the applicant’s range of cervical motion is normal and that a neurological examination was normal. The family doctor did not send the applicant for any diagnostic testing and/or prescribe medication relating to the injuries. The applicant complained on a few visits of dizziness. There are no Notes beyond late 2016. As such, I find the OCF-3 and the Notes are limited in their evidentiary value and do not establish entitlement to the non-earner benefit.

Dr. Solomon’s Evidence

12Dr. Solomon⁴ assessed the applicant’s psychological condition as a result of the accident. She interviewed the applicant who attended the interview with her husband, on May 13, 2016. Dr. Solomon issued a report (Solomon Report) ⁵ recommending psychological treatment as she found the applicant suffered some depression and anxiety. On cross-examination, Dr. Solomon stated she ruled out a major depressive disorder. She indicated the applicant could not volunteer at her children’s school as she had before the accident and she could not drive as before. The applicant reported to Dr. Solomon that her main concern after the accident was caring for her younger son [N] who was injured in the accident. The doctor reported the applicant’s leisure and social activities were curtailed because of her focus on caring for her younger son and spending time with him.

13Dr. Solomon’s Report indicates the applicant had some difficulty with household chores after the accident but overall the doctor reported that she was told by her husband that the applicant “does everything”. Dr. Solomon stated in cross examination that she has not seen the applicant for 1.5 years and had no reason to doubt what was reported to her and set out in her report. She confirmed she was never contacted to do a further assessment of the applicant.

The Applicant’s Evidence

14In her affidavit and Activities of Daily Living Form (OCF 12)⁶ the applicant states as a result of the accident, she could only partially drive, ride in a car, sit, stand, and needed help to prepare meals, with driving and shopping. The video surveillance evidence described below shows that the applicant’s claim that she can only partially drive, sit and climb stairs after the accident is not accurate. Her behaviour as seen in the surveillance shows she can walk freely and climb up and down stairs with no assistance.

15During cross examination she admitted after the accident:

(a) Being able do household chores but needed help from her husband with heavier tasks and heavy groceries

(b) Needing help from her mother with meal preparation

(c) Enjoying reading and walking with her older son

16I find the OCF-12 and the applicant’s testimony on cross examination indicate that the post-accident activities included the same activities pre-accident but with some modifications. After the accident as before, she continued to take care of her sons and walk and drive them to school. She was able to perform housekeeping activities such as laundry, and grocery shopping but her husband or mother assisted with the heavier tasks. She prepared meals although her mother assisted her with these as well. The OCF-12 indicates that by May 2018, the applicant had returned to occasional volunteering at the school. The applicant’s evidence does not establish that as a result of the accident she sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

17To the contrary the testimony from the applicant indicates post-accident that she:

(i) had resumed driving short distances

(ii) walked and drove the kids to school

(iii) cooked and was able to prepare snacks and meals for her kids on a daily basis

(iv) was able to walk with her older son, and play cards with him

(v) do light housekeeping and laundry with assistance from her mother and husband

(vi) do grocery shopping with help with heavier groceries

(vii) could manage the household bills

(viii) took care of her two sons both before and after school and at lunch time

(ix) resumed volunteering in May 2018

18Also, the applicant admitted that her relationships with her family and curtailment of social and leisure activities was due in part to the time and focus she gave to caring for her younger son. The needs of her younger son precluded participation in outside activities and because he couldn’t tolerate long drives, she was able to drive but for shorter distances.⁷ The accident related injuries must continuously prevent an insured from engaging in substantially all of their pre-accident activities. I find the care and pre-occupation of caring for her younger son prevented her from engaging in many of her pre-accident activities and not her impairments.

Video Surveillance Evidence

19The respondent submitted a surveillance report and video surveillance evidence taken on October 25, 27, November 29 and 30, 2016.⁸ I watched the video footage and found the report to be an accurate depiction of what occurs in the video which shows the applicant:

(i) walking her sons to and from school unassisted

(ii) driving her children to and from school

(iii) can walk, enter and exit a car with no difficulty or assistance

(iv) can walk up and down the stairs with no difficulty in movement

(v) driving and riding in a car and going shopping at various stores

20There is no doubt the applicant was active before the accident. She took care of her sons and the household. The principles in Heath indicate that if the applicant is experiencing significant restrictions, it may not count as “engaging in” that activity. I find that the applicant by October 2016 had resumed most if not all of her pre-accident activities. She did not return to volunteering until May 2018 but not being able to volunteer is only one activity of many and not sufficient to meet the test for a non-earner benefit. By October 2016⁹ the applicant had also returned to exercising and using a personal trainer to assist with the independent exercise program.

The Respondent’s IE Assessments

21I find that based on the applicant’s evidence, she has not established that she meets the test for a non-earner benefit. In addition, the evidence of the assessments completed by the respondent further support the finding that there is insufficient evidence to establish the applicant meets the non-earner test.

22A psychological assessment of the applicant was completed on June 23, 2016 by Dr. Lubinsky, psychologist ¹⁰ and a physiatry assessment was completed by Dr. Heitzner, physiatrist on July 7, 2016¹¹ and report dated August 19, 2016. Both doctors provide an outline of the activities pre and post-accident. Both found she did not meet the test for a non-earner benefit. I find their conclusions persuasive.

23Dr. Lubinsky¹² acknowledged the applicant’s injuries created some limitations such as needing help with homemaking activities but she continued to for example play cards and walk with her older son and take care of her younger son. He found she had mild depression, an adjustment disorder and anxiety but this did not warrant the need for non-earner benefits. I agree with Dr. Lubinsky’s conclusion that although the applicant’s injuries created some limitations, from a psychological perspective, they do not amount to an inability to substantially perform all of the activities of daily living and does not meet the non-earner test.

24Dr. Heitzner was also retained to assess the non-earner benefit. At the time of the physiatry assessment, the applicant suffered pain but he found she was independent with her personal care. Dr. Heitzner found the applicant suffered soft tissue injuries only with no neurological impairment. He concluded there was no impairment rendering the applicant incapable of performing all of her pre–accident activities and did not meet the test for non-earner benefits.

25An In-Home Assessment on June 15, 2016¹³ by Ms. Metha, occupational therapist, noted the applicant was observed being able to sit, stand, kneel, walk, climb stair climbs, carry, lift and modified shopping and had a functional range of motion during all movements. Ms. Metha noted the applicant was independent with her personal tasks and with house-keeping activities. Based on the review of available reports, her observations and the self reports from the applicant, she concluded the applicant did not suffer a complete inability to carry on a normal life. I agree with Dr. Metha’s conclusion based on her observations and the applicant’s ability to engage in physical and household activities. Ms. Metha recommended she could return to walking and an exercise program, volunteer and participate in family activities.

26A non-earner benefit was paid for a period of time by the respondent. I disagree with the applicant’s assertion that the respondent cannot now claim that a change occurred in her condition.

27Based on the totality of the evidence the applicant has not proven entitlement to a non-earner benefit. There is insufficient evidence to support a claim by the applicant that she suffers a complete inability to carry on a normal life as a result of an accident.

MEDICAL BENEFIT FOR CHIROPRATIC SERVICES

28Chiropractic treatment was recommended by Dr. Kobrossi, chiropractor, in the treatment plan dated November 7, 2016.¹⁴ The treatment plan was to 1) assist the applicant with pain 2) improve strength and range of motion and 3) facilitate a return to her normal activities of daily living. On October 26, 2016, the respondent also approved an exercise plan for Muay Thai Boxing. The respondent denied the treatment plan based on the chiropractic assessment completed on December 16, 2016 by Dr. Kopansky-Giles, chiropractor.¹⁵ The report concluded the treatment plan was not reasonable or necessary.

29Dr. Kopansky-Giles indicated in her report that her examination revealed the applicant’s sprain and strain of the back, neck and shoulders were resolving. The applicant had full range of motion and strength of the neck, shoulders and upper back with some mild pain at the end of the flexion and had at the time of the treatment plan, begun an independent exercise program¹⁶ which was helping. The applicant in cross examination stated that by November 2016 she had been exercising independently with a personal trainer which was recommended by Dr. Kobrossi. The applicant reported to Dr. Kopansky-Giles that the program was helping her improve.

30The applicant received chiropractic treatment for the 10 months following the accident. Although treatment improved her condition at first, she reported it had since stalled with little progress. On this basis, Dr. Kopansky-Giles concluded that the applicant had reached a plateau with her chiropractic treatment by the summer of 2016 and as such, indicated that additional treatment was not reasonable and necessary.

31I agree with Ms. Kopansky-Giles’s conclusion that the treatment plan is not reasonable and necessary. The applicant’s progress with the initial chiropractic treatment had stalled and the independent exercise program was effective.

32Based on the evidence, there is insufficient evidence to support a claim by the applicant that the chiropractic treatment plan is reasonable and necessary. The applicant is not entitled to a medical benefit for chiropractic services.

An Award Under Ontario Regulation 664

33Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments.

34The test for this award is a particularly onerous one: has an insurer unreasonably withheld or delayed payment? As the applicant is not entitled to a non-earner benefit nor the medical benefit for chiropractic treatment, I find the respondent could not have withheld or delayed payment of a benefit. Thus, the applicant’s claim for an award under section 10 of Ontario Regulation 664 is dismissed.

INTEREST

35Given that there has been no finding that the applicant is entitled to any further payment of benefits, any claim of interest on overdue benefits owed is dismissed.

PRELIMINARY ISSUE – MOTION FOR COSTS

36A procedural issue was raised by the respondent and heard at the outset of the teleconference portion of the hearing. The respondent filed a motion seeking reimbursement of the costs to summons two doctors.

37At the case conference on August 30, 2018, an Order was issued listing 3 witnesses to be cross examined for the applicant by teleconference which included the applicant, the family doctor, and Dr. Solomon. Prior to the hearing, as no report was being obtained from the family doctor or Dr. Solomon, applicant’s legal representative advised neither would be made available for cross examination. The applicant subsequently advised the respondent that it intended to rely on the clinical notes and records of the family doctor and Dr. Solomon’s report dated September 6, 2016. The respondent proceeded to cross examine Dr. Solomon.

38The respondent also raised the following additional argument: Dr. Solomon’s report of September 6, 2016 is inadmissible¹⁷ as she is not an expert and is not able to give an expert opinion. Alternatively, little weight should be given to her report. After hearing oral submissions from both parties, I allowed the evidence of Dr. Solomon and ruled based on her medical qualifications, training and experience outlined in her report ¹⁸ and pursuant to Rule 10.1 of the Tribunal Rules of Practice and Procedure that she is an expert. I made no ruling on the issue of costs at that time.

Motion for Costs Subsequent to the Hearing

39On March 25, 2019, the applicant filed a notice of motion for costs under Rules 19.2 and 19.5 of the Schedule. No written submissions were filed by the applicant to support the motion. On the same date, the respondent filed written submissions disputing the applicant’s claim for costs. I issued an Order dated April 8, 2019 that the March 25, 2019 motion will be heard after a decision in this matter is rendered.

CONCLUSION

40For the reasons outlined, the applicant is not entitled to a non-earner benefit from September 9, 2016 to date and ongoing and is not entitled to the medical benefit for $1,280.00 for chiropractic treatment. The claim for an award pursuant to section 10 of Ontario Regulation 664 is dismissed as is the claim for interest.

41Pursuant to my Order dated April 8, 2019, and if costs are still in dispute, the motion for costs dated March 25, 2019 will be heard after the decision in this matter is rendered and pursuant to the schedule for written submissions as set out in the Order. If the issue of costs is resolved, the parties shall advise the Tribunal by no later than 7 days following release of the release of this decision.

Released: June 25, 2019

Thérèse Reilly

Adjudicator

Footnotes

1. 1Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, tab 3, written submissions of the applicant.
2. 2Records, Humber River Hospital, tab A, OCF 3 dated January 21, 2016 Tab B, written submissions of the applicant.
3. 3Clinical notes and records of Dr. Sasson, arbitration brief of the respondent, amended submissions, tab 1.
4. 4The examination, although noted at the office of Dr. Eyal Bodenstein, was completed by Dr. Lena Solomon.
5. 5Report of Dr. Solomon, psychologist, dated September 6, 2016, tab D, written submissions of the applicant.
6. 6Tab F, written submissions of the applicant, and paragraph 27 of the applicant’s affidavit evidence, tab 2, written submissions of the applicant.
7. 7Paragraphs 14 and 17 of the applicant’s affidavit evidence, tab 2, written submissions of the applicant.
8. 8Respondent Arbitration Brief, tab 5.
9. 9Chiropractic Assessment Report of Dr. Kopansky-Giles dated January 9, 2017, respondent Arbitration Brief, tab 7 and tab H, written submissions of the applicant.
10. 10Report of Dr. Lubinsky, psychological assessment dated August 19, 2016, tab C, written submissions of the applicant.
11. 11Physiatry report of Dr. John Heiner, issued August 19, 2016, tab E, written submissions of the applicant.
12. 12Report of Dr. Lubinsky, psychological assessment, page 8.
13. 13Arbitration Brief of the respondent, tab 2.
14. 14Treatment Plan dated November 7, 2016 by Dr. Kobrossi, tab G, written submissions of the applicant.
15. 15Chiropractic Assessment, Report of Dr. Kopansky-Giles, respondent Arbitration Brief, tab 7.
16. 16Written submissions of the respondent, paragraph 18.
17. 17The respondent relies on the LAT Tribunal decision in M.G. and Guarantee, 2018 CanLII 13129, written motion materials of the respondent.
18. 18Report of Dr. Solomon, tab D, written submissions of the applicant, pages 2 and 3.