Citation: S.A. v. Royal Sun Alliance Insurance, 2019 CanLII 94038

Tribunal File Number: 18-003436/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:

S.A. Applicant

and

Royal Sun Alliance Insurance Respondent

DECISION

PANEL: Lindsay Lake, Adjudicator

APPEARANCES:

For the Applicant: Elena Pelz, Counsel

For the Respondent: Dave Dhillon, Counsel

HEARD IN WRITING: January 21, 2019

OVERVIEW

1The applicant, S.A., a single mother to five children ranging in ages 11 to 25, was injured in an accident on January 7, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Royal Sun Alliance Insurance (“RSA”), the respondent.

2RSA denied S.A.’s claims because it had determined that all of S.A.’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (the “MIG”).¹ RSA also denied S.A.’s claim for weekly non-earner benefits and a visitor’s expense. As a result, S.A. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on August 14, 2018 and the matter proceeded to a written hearing on January 21, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did S.A. sustain predominately minor injuries as defined under the Schedule?²

(ii) Is S.A. entitled to receive a medical benefit for physiotherapy services as follows:

(a) $3,049.45, recommended by Thistletown Rehabilitation Centre in a treatment plan submitted on April 4, 2016, and denied by RSA on April 25, 2016?

(b) $2,775.12, recommended by Downsview Healthcare Inc. in a treatment plan submitted on May 10, 2018, and denied by RSA on May 24, 2018?

(c) $2,150.08, recommended by Downsview Healthcare Inc. in a treatment plan submitted on July 26, 2018, and denied by RSA on August 9, 2018?

(iii) Is S.A. entitled to payment for the cost of a chronic pain assessment in the amount of $2,000.00 recommended by Downsview Healthcare Inc. in a treatment plan submitted on May 28, 2018, and denied by RSA on June 7, 2018?

(iv) Is S.A. entitled to a weekly non-earner benefit (“NEB”) in the amount of $185.00, for the period of June 7, 2017 to date and ongoing?

(v) Is S.A. entitled to expenses of visitors in the amount of $110.00, which was submitted on June 1, 2016, and denied by RSA on June 14, 2016?

(vi) Is S.A. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, I find:

(i) S.A.’s soft tissue injuries from the accident are “minor injuries” as defined in the Schedule, but she is removed from the MIG because she suffered a chronic pain condition as a result of the accident;

(ii) S.A. is entitled to all four of the treatment plans in dispute as a result of RSA’s failure to comply with s. 38(8) of the Schedule and any interest owed on any overdue payment of these benefits in accordance with s. 51 of the Schedule;

(iii) S.A. is not entitled to NEBs in the amount of $185.00, for the period of June 7, 2017 to date and ongoing; and

(iv) S.A. is not entitled to a visitor’s expense in the amount of $110.00.

PROCEDURAL ISSUE – MISSING EVIDENCE

6At the case conference held on August 14, 2018, a written hearing was scheduled for January 21, 2019 in this matter. The parties were required to serve and submit their written submissions and evidence on each other, and file same with the Tribunal, according to the schedule outlined in the Tribunal’s August 29, 2018 Order.

7After reviewing the parties’ written submissions and evidence, the following documents were not filed with the Tribunal, despite being referred to by S.A. in her submissions:

(i) treatment and assessment plan (OCF-18) in the amount of $3,049.45 for submitted on April 4, 2016, and RSA’s corresponding denial;

(ii) OCF-18 in the amount of $2,775.12 submitted on May 10, 2018, and RSA’s corresponding denial;

(iii) OCF-18 in the amount of $2,150.08 submitted on July 26, 2018, and RSA’s corresponding denial; and

(iv) OCF-18 in the amount of $2,000.00 for the cost of a chronic pain assessment submitted on May 28, 2018, and RSA’s corresponding denial.

8I issued an Order on June 14, 2019 requesting submissions from both parties on whether or not I should allow S.A. to file the above-listed documents as evidence in this written hearing given the Tribunal’s Reconsideration Decision of J.R. v. Certas Home and Insurance Company.³ In that decision, Executive Chair Lamoureux highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing.

9For the reasons that follow, I am allowing the documents listed in paragraph [7] above to form part of the evidence of the hearing despite it not being filed with the Tribunal in accordance with the timelines set out in the August 29, 2018 Order.

10In response to my June 14, 2019 Order, S.A. requests that I allow her to file the missing documents as evidence as set out above. For the OCF-18 in the amount of $3,049.45, S.A. argues that the insurance fax back portion of the OCF-18 and RSA’s denial were included in her Application and, therefore, it was not refiled because she wanted to avoid duplication. I give no weight to this argument, as the Tribunal’s August 29, 2018 Order clearly states that the documents filed by the parties with their application, response or for the case conference will not be part of the evidence at the hearing. The parties were clearly instructed to resubmit any documents that they wish to rely upon for the hearing.

11For the remaining OCF-18s at issue, S.A. argues that they too should be admitted as evidence because she was not in possession of these documents, or the corresponding denials, by December 21, 2018 when her submissions and evidence were due and, as such, she could not include the documents in her submissions. I give this argument no weight as well, as S.A. confirmed in her submissions that she obtained the missing OCF-18s from Downsview Healthcare Inc. following my June 14, 2019 Order. While I accept that RSA did not provide its written denials of these OCF-18s until after the written hearing date, it was still possible for S.A. to file the OCF-18s as she was verbally informed at the case conference that RSA was not approving these treatment plans.

12RSA requests that I render my decision without a review of the documents set out in paragraph [7] above. RSA argues that allowing S.A. to submit the missing OCF-18s and corresponding denials would be akin to submitting “fresh evidence” on an appeal. RSA submits that I am bound by the Supreme Court of Canada decision of R. v. Palmer,⁴ which sets out the test to admit fresh evidence, and S.A. fails to meet this test because she had access to the missing documents prior to serving and filing her submissions. While I agree that S.A. had access to the missing OCF-18s prior to serving and filing her submissions and RSA’s denial of the first treatment plan, I accept S.A.’s submission that she was not in possession of RSA’s denials for the three treatment plans until after the scheduled hearing date. Furthermore, R. v. Palmer is distinguishable on several grounds, including that it was a criminal law decision.

13RSA also submits that it would suffer prejudice if I allow the missing documents to form part of the evidence in this hearing at this juncture because it has not had an opportunity to review and make submissions on the “exact documents” that S.A. would be permitted to submit. I also reject this argument as RSA has had an opportunity to review the OCF-18s at issue, it had an opportunity to make submissions on them as part of its overall submissions for the hearing and it was the author of the corresponding denials.

14RSA additionally argues that allowing the documents into evidence would frustrate the Tribunal’s mandate to proceed in a timely manner. I agree with RSA that this additional procedural issue concerning missing evidence has extended the time of this written hearing; however, the Tribunal is also mandated to facilitate a fair process and to allow effective participation by all parties pursuant to Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). In this case, I find that the Tribunal’s mandate to facilitate a fair process and to allow effective participation takes precedence over its mandate to ensure timely resolution of matters.

15As I have given no weight to the arguments advanced by the parties and affirmed my obligation to a fair and effective process, I agree with Executive Chair Lamoureux that I cannot fairly adjudicate the treatment plans in dispute without a copy of these documents.⁵ Furthermore, I am permitted by Rule 9.1 of the Rules to request further particulars or disclosure “at any stage in a proceeding” as I consider necessary for a full and satisfactory understanding of the issues. I find that the missing OCF-18s and the corresponding denials are necessary for my full and satisfactory understanding of the issues in dispute in this matter. For all of these reasons, I am allowing the documents listed in paragraph [7] above into evidence in this hearing.

ANALYSIS

Did S.A. sustain predominately minor injuries as defined under the Schedule?

a) The Minor Injury Guideline (“MIG”)

16The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

17Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

18The onus is on S.A. to show that her injuries fall outside of the MIG.⁶ In this case, S.A. argues that her injuries sustained in the accident are not “minor injuries” as defined in the Schedule. In the event that I find that her injuries are “minor injuries,” S.A argues in the alternative that she should be removed from the MIG because she has been diagnosed with a chronic pain condition, had a pre-existing condition and/or sustained psychological injuries as a result of the accident.

19I find the soft-tissue injuries that S.A. sustained from the accident are “minor injuries” as defined in the Schedule. I also find that S.A. suffers from a chronic pain condition and, as a result, she is removed from the MIG.

b) Soft-Tissue Injuries

20Following the accident, S.A. was admitted at [a Hospital] and was diagnosed with whiplash.⁷ On January 23, 2016, S.A.’s family doctor, Dr. Patricia Lee, also diagnosed S.A. with whiplash injury/neck strain, lumbar strain and left knee pain.⁸ Dr. Lee made the following further diagnoses of S.A. between May 8, 2016 and March 2018: neck and shoulder strain (May 8, 2016); right ankle sprain (June 2, 2016); neck strain and lumbar/coccyx/SI joint pain (April 15, 2017); and back lumbar strain (March 2018). Furthermore, none of the various imaging that S.A. had following the accident revealed any injuries beyond “minor injuries” attributable to the accident.

21S.A. submitted a Disability Certificate (OCF-3) dated January 20, 2016, that was completed by Dr. Fadumo Hassan, chiropractor.⁹ Dr. Hassan lists injuries under the injury and sequelae information as including: acute post-traumatic headache; acute injury of muscle and tendon at neck level; acute sprain and strain of other and unspecified parts of shoulder girdle (R); acute sprain and strain of the thoracic and lumbar spine; acute internal derangement of knee (left); and acute radiculopathy of cervical spine. I accept the injury and sequelae information contained on the OCF-3, as it is also supported by the insurer’s examination (IE) report by Dr. David Mula dated May 30, 2016,¹⁰ except for Dr. Hassan’s description of acute internal derangement of S.A.’s left knee and acute radiculopathy of S.A.’s cervical spine. I agree with Dr. Mula’s finding that there is no objective medical evidence of internal derangement of the left knee or of a radiculopathy.¹¹ There are no attachments to Dr. Hassan’s OCF-3 or additional information on how Dr. Hassan arrived at these two diagnoses such as testing, imaging, etc. As such, I give no weight to Dr. Hassan’s diagnosis of acute internal derangement of S.A.’s left knee and acute radiculopathy of S.A.’s cervical spine.

22S.A. also relied upon an August 9, 2018 Independent Medical Evaluation Report by Dr. Igor Wilderman, physician,¹² in which he diagnoses S.A. with several soft tissue and other injuries including: chronic whiplash associated disorder (WAD) type 1; mechanical lower back pain Pattern 1 PEN; left trochanteric bursitis; bilateral TMJ syndrome; internal derangement of the left knee joint; post-traumatic osteoarthritis of the left acromioclavicular joint; myofascial pain syndrome of the left rhomboid region; left bicipital tendonitis; depression; and moderate post-traumatic stress disorder (PTSD).¹³ I agree with RSA that Dr. Wilderman diagnoses S.A. with certain conditions that are outside his area of expertise. As a result, I give no weight to Dr. Wilderman’s findings that S.A. suffered from bilateral TMJ syndrome, internal derangement of the left knee joint, tendonitis, depression and moderate PTSD.

23S.A. also submitted a second OCF-3 completed by Dr. Oleksandr Pivtoran, chiropractor, dated May 5, 2018.¹⁴ This OCF-3 also lists internal derangement of the left knee in the injury and sequelae information portion, but there is no attachment to the OCF-3 indicating how Dr. Pivtoran made this diagnosis. Dr. Pivtoran also lists injuries on the OCF-3 as including: chronic cervical joint dysfunctional with myofascial symptoms; lumbar spine – chronic lumbar joint dysfunction; thorax – costovertebral joint dysfunction (bilateral); thoracic – joint dysfunction; and head – dizziness.

24My finding that S.A.’s soft tissue injuries are “minor injuries” as prescribed by the Schedule is supported by the IE assessors’ opinions that S.A.’s injuries fall within the MIG. For example, Dr. David Mula, physician, opined that S.A. suffered a myofascial strain of the neck, left trapezius and left suprascapular area, lumbar myofascial strain, myofascial strain of the left knee, and tension headaches.¹⁵ Further, Dr. Mansour I. Alvi, orthopaedic surgeon, opined in his December 6, 2018 Orthopaedic Assessment Report¹⁶ that from an orthopaedic perspective, S.A.’s injuries fall within the definition of a “minor injury.”¹⁷

25I find that S.A. sustained soft tissue injuries as a result of the accident, which are “minor injuries” as defined in the Schedule. I cannot give weight to other diagnoses of other injuries allegedly sustained by S.A. as a result of the accident for the reasons set out above.

c) Chronic Pain

26I find that S.A. suffers from a chronic pain condition as a result of the accident that places her injuries outside of the MIG.

27S.A. relies upon the reconsideration decision of 17-000835 v. Aviva General Insurance Canada¹⁸ for the proposition that chronic pain, if established, removes a claimant from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. Moreover, chronic pain, if established, should not be included in the MIG definition as a sequelae to minor injuries.

28RSA argues that 17-000835 is distinguishable because in that case, the Tribunal found that the applicant was suffering from chronic pain syndrome whereas S.A. was diagnosed as suffering a chronic pain condition. RSA argues that the distinction between a chronic pain condition verses a chronic pain syndrome is significant and relies upon the decision of 17-006571 v TD Home & Auto Insurance Company,¹⁹ where the Tribunal held that an assessor failed to equate a chronic pain condition to chronic pain syndrome, and therefore the wording did not provide a coherent basis upon which to remove the applicant from the MIG. In this case, RSA argues, a “chronic pain condition” was not a helpful diagnosis.

29I agree with RSA’s reading of 17-006571; however, at the time that decision was released, the Tribunal did not have the benefit of Executive Chair Lamoureux’s reconsideration decision in 17-000835. Furthermore, the diagnosis of a chronic pain condition in 17-006571 was made only 1-month post-accident and was also given less weight as a result of the timing. For these reasons, I accept the findings of Executive Chair Lamoureux in 17-000835 regarding chronic pain and agree that it is not captured by the definition of “minor injury” or its sequelae in the Schedule.

30S.A. argues that chronic pain removes her from the MIG. In support of her position, she relies upon Dr. Wilderman’s August 9, 2018 IE report wherein Dr. Wilderman opines that S.A. has “developed a chronic pain disorder.”²⁰ Dr. Wilderman describes chronic pain as pain that persists for more than 3 to 6 months, or pain that lasts longer than expected after an injury or illness. Dr. Wilderman further explains that chronic pain is associated with significant and reliable impairment of functional status as experienced by the patient and that the degree of functional impairment typically exceeds or occurs in the relative absence of medical or physical findings.²¹

31Dr. Wilderman reported that prior to the accident, S.A. spent leisure time with friends and family, attended social and community events, performed chores and grocery shopping, was a caregiver and performed housekeeping and home maintenance duties. Post-accident, Dr. Wilderman reports that S.A. secludes herself, has sleep disruptions, is unfit to engage in the caregiver functions she performed normally prior to the accident, has decreased memory abilities and that S.A. is unable to perform the housekeeping and home maintenance that she did pre-accident including meal preparation, kitchen, oven and refrigerator cleaning, dishwashing, sweeping, mopping, dusting, vacuuming, laundry, ironing, grocery shopping, window cleaning, bed making and disposing of garbage.²² Dr. Wilderman also reported that S.A.’s ongoing pain complaints were in her left knee, her neck, bilateral shoulder pain, and low and upper back. He also provided a report of her pain ratings and the frequency of S.A.’s pain in his report. Dr. Wilderman concluded that S.A.’s injuries fell outside of the MIG as she has developed a chronic pain condition with a psychological component, which cannot be treated within the allotted monetary MIG limits.²³

32RSA argues that I should place little weight on Dr. Wilderman’s report because:

(i) It contains contradictions with other report regarding S.A.’s pre-existing knee injury;

(ii) Dr. Wilderman diagnosed S.A. with a range of conditions outside of his expertise; and

(iii) Dr. Wilderman only reviewed S.A.’s OHIP summary between January 7, 2013 and March 6, 2018 and the OCF-3 dated January 20, 2016 by Dr. Hassan, which contradicts Dr. Wilderman’s statement that a review of pre-existing conditions “is essential to a valid and reliable diagnosis of chronic pain.”

33I do not agree with RSA’s arguments on the utility of Dr. Wilderman’s report in my determination of whether or not S.A. suffers from chronic pain because:

(i) Dr. Wilderman does not limit his diagnosis of a chronic pain condition to S.A.’s knees if there is any discrepancy about S.A.’s knees in his report when compared to other assessors’ reports;

(ii) I agree that Dr. Wilderman diagnosed S.A. with a range of conditions outside of his area of expertise but I do accept him as an expert in chronic pain and one of the diagnosis that he made within his area of expertise is that S.A. suffers from a chronic pain condition; and

(iii) RSA did not direct me to Dr. Wilderman’s statement in his report that a review of a patient’s pre-existing conditions is essential to a valid and reliable diagnosis of chronic pain.

34In refuting S.A.’s claim that she suffers from chronic pain, RSA asks that I place weight on the IE reports dated July 20, 2016 by Dr. Mula and Dr. Murray. Dr. Mula’s examination, however, was not conducted for the purpose of determining whether or not S.A. suffered from chronic pain and makes no findings one way or the other on the issue. Dr. Mula only opined that S.A.’s impairments fall within the definition of “minor injury.” However, I do find that the absence of any comment on chronic pain in Dr. Mula’s report interesting, especially given Dr. Mula’s experience and expertise in pain management and chronic pain. Similarly, the purpose of Dr. Murray’s report was to opine on S.A.’s entitlement to NEBs, not to determine if she suffers from chronic pain.

35While I accept that there are some limitations to Dr. Wilderman’s report due to his diagnoses of S.A. outside of his area of practice, I do accept his findings on S.A.’s chronic pain and accept his diagnosis that S.A. suffers from a chronic pain condition especially due to his report being completed over two years after the accident and S.A. still reporting pain at that time. Therefore, as I find that S.A. suffers from a chronic pain condition, her injuries as a result of the accident do not fall within the MIG.

d) Pre-existing Condition(s) and Psychological Injuries

36As I have concluded that S.A. is removed from the MIG as a result of her chronic pain condition, it is no longer necessary for me to consider the impact of any pre-existing injuries or psychological injuries on S.A.’s MIG status.

37Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

38S.A. bears the onus of proving her entitlement to the claimed physiotherapy treatment and chronic pain assessment are reasonable and necessary on a balance of probabilities.

39As a result of RSA’s non-compliance with s. 38(8) of the Schedule, I find that it is liable to pay for all four of the treatment plans in dispute in their entirety in accordance with s. 38(11).

OCF-18 in the amount of $3,049.45

40The April 11, 2016 OCF-18 was completed by Anupa Malik Hundani, physiotherapist, and, in addition to physiotherapy, it also sought funding for massage and laser therapy.

41RSA denied this treatment plan via correspondence to S.A. dated April 25, 2016. I find that this denial failed to comply with s. 38(8) of the Schedule, which requires an insurer to provide the insured person with a notice within 10 business days of receiving a treatment plan of the, “medical and any other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable or necessary.” In its April 25, 2016 correspondence, RSA only stated that based on a review of the information and medical documentation provided to date that it does not agree to pay for the treatment plan. I find that its correspondence fails to state any medical or other reasons why RSA considered the treatment plan unreasonable and/or unnecessary and, therefore, find that it is not in compliance with s. 38(8).²⁴ As a result, the consequences set out in s. 38(11) of the Schedule, which require an insurer to pay, “for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8),” are triggered.

42RSA sent an explanation of benefits to S.A dated February 8, 2019, after the scheduled hearing date, that enclosed IEs from Dr. Sandhu, Dr. Alvi and Dr. Murray all dated December 6, 2018, and stated that S.A.’s predominant accident injuries are physical in nature and can be treated within the MIG. As such, RSA advised that it was unable to consider this treatment plan along with the other three OCF-18s in dispute. Despite my requests for RSA’s corresponding denials in my June 14, 2019 Order, I was not provided with any other denials for this treatment plan from either party.

43I am satisfied that RSA corrected its deficient notice almost three years after its first denial of this treatment plan. RSA, therefore, is liable to pay for the treatment in the OCF-18 that is “related to the period” starting on the 11th business day after it received the OCF-18 until February 8, 2019 when it corrected its deficient notice pursuant to paragraph 2 of s. 38(11) of the Schedule. The estimated duration of the treatment plan was 10 weeks, which would have expired well before the corrected notice was sent to S.A. In my view, and absent any evidence to the contrary, the physiotherapy, massage therapy and laser therapy described in the OCF-18 could have been used for treatment at any time during the almost three-year period until the corrected notice was delivered. Therefore, I find that RSA is liable to pay for the April 11, 2016 OCF-18 in the full amount of $3,049.45.

OCF-18 in the amount of $2,775.12, OCF-18 in the amount of $2,150.08 and the OCF-18 for a Chronic Pain Assessment

44The May 4, 2018 OCF-18 in the amount of $2,775.12 sought funding for an initial assessment, a functional exercise program, passive physiotherapy modality, massage therapy (aquamassage if needed), laser therapy, mobilization (RMT) and a diagnostic ultrasound. The expected duration of this treatment plan was 6 weeks.

45The second May 4, 2018 OCF-18 sought funding for a chronic pain assessment. The expected duration of this treatment plan was 8 weeks.

46The July 24, 2018 OCF-18 in the amount of $2,150.08 sought funding for a follow-up assessment, massage therapy (aquamassage if needed), functional exercise program, passive physiotherapy modality, laser therapy and mobilization (RMT). The expected duration of this treatment plan was 6 weeks.

47The denial dates of these treatment plans listed in the Tribunal’s August 29, 2018 Order were May 24, 2018, June 7, 2018 and August 9, 2018, respectively. However, I was not provided with any denials of these dates from either party following my request for same in my June 14, 2019 Order. The only denials submitted as evidence for these treatment plans was the explanation of benefits dated February 8, 2019 as discussed above. Further, S.A. submitted that it was only verbally advised of the denials of these treatment plans during the case conference and no corresponding written denials were provided by RSA until February 8, 2019.

48As discussed above, s. 38(8) of the Schedule requires an insurer to respond within 10 business days of receiving a treatment plan. RSA’s February 8, 2019 denial was well outside of this period. As a result, the consequences of s. 38(11) are also triggered regarding these three treatment plans. The expected duration of all of these treatment plans would have expired well before RSA’s denial was sent to S.A. In my view, and absent any evidence to the contrary, all of the medical benefits outlined in these three treatment plans could have been used for treatment at any time during the 7 to 9 months until RSA’s denial was delivered to S.A., which was even after the scheduled hearing date in this matter. Therefore, I find that RSA is liable to pay for both of the May 4, 2018 OCF-18s in the amounts of $2,775.12 and $2,000.00, and also for the July 24, 2018 OCF-18 in the amount of $2,150.08.

Non-Earner Benefits (NEBs)

49I find that S.A. has not proven on a balance of probabilities that she is entitled to NEBs for the period of June 7, 2017 to date and ongoing.

50The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

51Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

52“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”²⁵

53Neither party cited Heath v. Economical Mutual Insurance Company,²⁶ the leading decision on NEBs, wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.²⁷

54Heath also outlines several principles for the determination of entitlement to NEBs, which include:

(i) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

(ii) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period 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 activities that were more important to the applicant’s pre-accident life;

(iv) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

(v) “engaging in” should be interpreted from a qualitative perspective, such that 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; and,

(vi) if pain is the primary reason that an applicant cannot engage in 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 perform those activities.²⁸

55Further, the Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less he or she is able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which he or she ordinarily engaged.²⁹

56S.A. submits that as a result of the accident, she suffers a substantial inability to carry on a normal life and has sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged in before the accident. As such, S.A. argues that she is entitled to NEBs for the period of June 7, 2017 to date and ongoing.

57S.A. relies upon two Disability Certificates (OCF-3) dated January 20, 2016³⁰ and May 5, 2018³¹ which both confirm that she suffered a complete inability to carry on a normal life. These documents alone, however, are not sufficient to prove her entitlement to NEBs.

58S.A. also relies upon a Psychological Assessment Report dated October 6, 2018³² which stated, “based on the information provided during this assessment, it is my opinion that [S.A.] is not currently able to perform her activities of daily living.”³³ I am, however, unable to place any weight on this report because it was based on a clinical interview completed by Ms. Helen Illios, a psychotherapist working under the supervision of Dr. Andrew Shaul, and the administration of three psychological self-reports administered to S.A.³⁴ In my opinion, it is unclear from the report who opined that S.A. is not currently able to perform her activities of daily living. For example, the report states “it is my opinion,” but is signed by both Ms. Illios and Dr. Shaul. The report also states twice that S.A. was referred to “us.”³⁵

59The only other evidence submitted by S.A. to support her claim for NEBs is the August 9, 2018 IE report by Dr. Wilderman. In his report, Dr. Wilderman opines that S.A. suffers a substantial inability to carry on a normal life as a result of the accident.³⁶ While Dr. Wilderman provides a comparison of S.A.’s pre- and post-accident activities, his report fails to provide evidence of the frequency and time commitments of S.A.’s activities and also fails to identify which activities were more important to S.A.

60Based on all of the reasons set out above, I find that S.A. has failed to meet her onus of proving on a balance of probabilities that, as a result of the accident, she sustained an impairment that continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Therefore, she is not entitled to NEBs for the period of June 7, 2017 to date and ongoing.

Visitor Expense

61The Tribunal’s August 29, 2018 Order lists as an issue in dispute between the parties of whether or not S.A. is entitled to payment for a visitor expense in the amount of $110.00, which was denied by RSA on June 14, 2016.

62No documents were submitted as evidence by S.A. regarding this issue. However, in her submissions, S.A. withdraws her claim for $65.00 for a taxi expense, which I assume is a portion of the total amount of $110.00 at issue, and S.A. states, “$45.00 for the ambulance bill was unreasonably denied.”³⁷

63RSA submits that S.A. was paid for the cost of the ambulance in the amount of $45.00 and that the remaining $65.00 is not payable because S.A. travelled fewer than 50 kilometers and, therefore, RSA is not liable to pay for the first 50 kilometers of transportation pursuant to s. 3(1) of the Schedule.

64As I have no evidence before on this issue, and it appears as though this issue may now be moot despite no formal withdrawal of same by S.A., I find that S.A. has failed to prove on a balance of probabilities that she is entitled to payment for a visitor expense in the amount of $110.00.

Interest

65S.A. is entitled to interest for the four treatment plans in dispute. Interest is payable in accordance with s. 51 of the Schedule.

CONCLUSION

66For the reasons outlined above, I find:

(i) S.A.’s soft tissue injuries from the accident are “minor injuries” as defined in the Schedule; however, S.A. is removed from the MIG because she has proven on a balance of probabilities that she suffers from a chronic pain condition;

(ii) S.A. is entitled to all four of the treatment plans in dispute as a result of RSA’s failure to comply with s. 38(8) of the Schedule and any interest owed on any overdue payment of these benefits in accordance with s. 51 of the Schedule;

(iii) S.A. failed to prove on a balance of probabilities that she sustained an impairment that continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Therefore, S.A. is not entitled to NEBs in the amount of $185.00 per week for the period of June 7, 2017 to date and ongoing; and

(iv) S.A. has failed to prove on a balance of probabilities that she is entitled to a visitor’s expense in the amount of $110.00.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Although this issue was not identified as an issue in dispute between the parties in Adjudicator Kepman’s August 29, 2018 Order and no formal motion has been brought to add this issue to the issues in dispute, both parties made submissions on this issue and it is clear that a determination of whether or not S.A. sustained predominately minor injuries is required. As such, I accept the addition of this issue for the written hearing.
3. 32018 CanLII 13161 (ON LAT).
4. 4[1980] 1 S. C. R. 759, 1979 CanLII 8 (SCC).
5. 5Supra note 3 at para. 21.
6. 6Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
7. 7Emergency Treatment Record dated January 7, 2016 from Trillium Health Partners –[a Hospital], Submissions of the Applicant, tab 3.
8. 8Clinical Notes and Records of Dr. Patricia Lee, Submissions of the Applicant, tab 1.
9. 9Submissions of the Applicant, tab 6.
10. 10Submissions of the Insurance Company, tab P.
11. 11Ibid. at page 11.
12. 12Submissions of the Applicant, tab 10.
13. 13Ibid. at page 10.
14. 14Submissions of the Applicant, tab 9.
15. 15Supra note 10 at page 10.
16. 16Submissions of the Insurance Company, tab Q.
17. 17Ibid. at page 11.
18. 182018 CanLII 83520 (ON LAT) at paras. 20, 23-24 (“17-000835”).
19. 192018 CanLII 115669 (ON LAT) (“17-006571”).
20. 20Supra note 12 at page 3.
21. 21Ibid.
22. 22Ibid. at pages 9-10.
23. 23Ibid. at page 12.
24. 24See 17-006004 v Aviva Insurance Canada, 2018 CanLII 110925 (ON LAT) at para. 25.
25. 2516-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
26. 262009 ONCA 391 (“Heath”).
27. 27Ibid. at para. 50.
28. 28Ibid.
29. 2916-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
30. 30Submissions of the Applicant, tab 6.
31. 31Submissions of the Applicant, tab 9.
32. 32Submissions of the Applicant, tab 11.
33. 33Ibid. at page 13.
34. 34Ibid. at page 1.
35. 35Ibid. at pages 1 and 11.
36. 36Supra note 12 at pages 11-12.
37. 37Submissions of the Applicant, para. 23.