Citation: A.V. vs. Certas Home and Auto Insurance Company, 2020 ONLAT 18-007875/AABS

Tribunal File Number: 18-007875/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:

A.V.

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: A.V., the Applicant Andrew Franzke, Counsel Clifford Singh, Counsel Ahmed Iham, Articling Student

For the Respondent: Mohamed Khan, Adjuster J.-C. Rioux, Counsel

Interpreter (Tamil): [R.M.]

Court Reporter: [M.H.] (April 16 and 17, 2019) [G.V.] (May 9, 2019)

HEARD IN PERSON: April 16 and 17, 2019 and May 9, 2019 Toronto, Ontario

OVERVIEW

1The applicant, A.V., was injured in an automobile accident on March 22, 2016 (the "accident") and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule")¹ from Certas Home and Auto Insurance Company ("Certas"), the respondent.

2Certas denied A.V.'s claim for weekly non-earner benefits and a treatment plan for a psychological assessment. Certas took the position that all of A.V.'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").² As a result, A.V. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3The parties were unable to resolve the issues in dispute at the case conference and the matter proceeded to an in-person hearing on April 16 and 17, 2019 and on May 9, 2019 which was followed by written closing submissions.

ISSUES IN DISPUTE

4The following issues are to be decided:

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

(ii) Is A.V. entitled to payment for the cost of an examination in the amount of $2,000.00 for a psychological assessment, recommended by Grazyna (Grace) Gronkowska, psychological associate, at the Scarborough Physio and Rehab Centre, in a treatment plan dated September 11, 2017 and denied by Certas on September 22, 2017?

(iii) Is A.V. entitled to a non-earner benefit in the amount of $185.00 per week for the period of November 30, 2016 to date and ongoing?

(iv) Is A.V. entitled to interest on any overdue payment of benefits?

(v) Is A.V. entitled to an award under O. Reg. 664 because Certas unreasonably withheld or delayed the payment of benefits?

RESULT

5I find that A.V. sustained predominantly minor injuries as defined by the Schedule. I also find that A.V. is not entitled to the cost of the psychological assessment, a weekly non-earner benefit, interest or an award.

PROCEDURAL ISSUES

a) A.V.'s request to allow the April 12, 2019 Psychological Evaluation Report by Dr. Romeo Vitelli into evidence

6At the commencement of the hearing, A.V. requested that an April 12, 2019 Psychological Evaluation Report by Dr. Romeo Vitelli be allowed into evidence despite it not being served on Certas in accordance with the deadline of March 14, 2019 as set out in the Tribunal's December 12, 2018 Order. Certas did not consent to A.V.'s request.

7After hearing submissions from the parties and considering 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"), I used my discretion and allowed the April 12, 2019 Psychological Evaluation Report into evidence as I was satisfied that it was relevant to the issues in dispute. Given my decision, Certas then requested an opportunity to cross-examine Dr. Vitelli. In my opinion, Certas' request was reasonable and, as a result, the hearing was continued on May 9, 2019 for Certas' cross-examination of Dr. Vitelli.

b) Certas' request to allow witnesses to testify electronically

8On April 8, 2019, Certas filed a Notice of Motion requesting permission to have Dr. Mitchell Fox testify at the hearing via Skype. Initially, A.V. did not consent to Certas' request and the motion was scheduled to be heard at the hearing.

9A.V. ultimately took no position at the hearing regarding the relief sought by Certas and failed to raise any prejudice resulting from Certas' request. As a result, I permitted Dr. Fox to testify via Skype.

10Further, while no formal motion was before me, I also provided permission for Dr. Betty Choi-Fung, A.V.'s family doctor, to testify electronically at the hearing.

ANALYSIS

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

a) The Minor Injury Guideline ("MIG")

11The 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.

12The onus is on A.V. to show, on a balance of probabilities, that her injuries fall outside of the MIG.³ A.V. argues that she should be removed from the MIG because she sustained psychological issues and/or has chronic pain as a result of the accident.

13Based on all of the evidence before me, I find that A.V. has failed to prove on a balance of probabilities that she suffers from a psychological impairment or from chronic pain arising from the accident and, as a result, her injuries do not fall outside of the MIG.

b) Psychological Impairments

14A.V. made no arguments regarding any psychological impairments when addressing the MIG in her submissions. However, in other portions of her submissions, A.V. claims that she suffered from psychological distress since the accident such as vehicle-related anxiety, nightmares and sleeplessness.

15Psychological impairments, if established, fall outside the MIG, because the MIG only governs "minor injuries" and the prescribed definition does not include accident-related psychological impairments.

16Tribunal decisions, however, do not agree on whether psychological symptoms alone warrant a removal from the MIG. For example, the Tribunal held in 16-000438 v The Personal Insurance Company,⁴ that the reference to "psychosocial symptoms" in the MIG is a recognition that a minor injury includes some psychosocial or psychological symptoms that are treatable within the MIG. Therefore, the Tribunal found in that case that an applicant must show that his or her psychological complaints are not merely psychological or psychosocial symptoms, but that he or she has sustained a psychological impairment as a result of the accident. On the other hand, other decisions such as 17-005791 v Aviva Insurance Canada⁵ have held that if psychological symptoms are present, they would be outside of the MIG.⁶ In 17-005791, however, the applicant was also diagnosed with a psychological impairment that was accepted by the Tribunal, which is distinguishable from the facts in this matter as discussed below.

17Based on all of the evidence before me, and the fact that previous Tribunal decisions that held psychological symptoms alone are enough for a removal from the MIG are distinguishable, I find that A.V. has failed to prove on a balance of probabilities that she suffers from a psychological impairment that would remove her from the MIG for the following reasons:

(i) A.V.'s family doctor, Dr. Choi-Fung, wrote a note dated August 22, 2017 stating, "please consider psychology counselling MVA becomes scare." However, this note followed the first and only psychological complaint made by A.V. to Dr. Choi-Fung on August 22, 2017 as reflected in Dr. Choi-Fung's clinical notes and records ("CNRs"). While A.V. testified that she reported psychological issues to Dr. Choi-Fung, A.V. also testified that she did not recall reporting her bad dreams and sleeping difficulties to Dr. Choi-Fung in and around August 2017, which indicates to me that they were not more than minor psychological complaints;

(ii) I do not agree with A.V.'s submission that Dr. Bruce Ballon, a psychiatrist who completed an insurer's examination ("IE") of A.V., testified that A.V. had bad dreams for one year following the accident.⁷ Rather, Dr. Ballon's evidence in cross-examination was an acknowledgement of the August 22, 2017 entry in Dr. Choi-Fung's CNRs that A.V. reported having bad dreams to Dr. Choi-Fung over one-year post-accident;

(iii) A.V. was never prescribed medication or received any treatment for any of her psychological complaints;

(iv) While Mamta Shah, A.V.'s treating physiotherapist, testified that A.V. reported psychological symptoms to her including a fear of driving, Ms. Shah provided no further details as to when A.V. reported this information to her or the frequency of such complaints from A.V. Further, Ms. Shah did not testify as to any actions that she took in response to A.V.'s complaints, which again leads me to conclude that A.V.'s psychological complaints were not more than minor;

(v) The only medical evidence before me that A.V. was diagnosed with any psychological impairments (general anxiety disorder, major depressive disorder and specific phobia - situation type - vehicular) is an April 12, 2019 Psychological Evaluation Report by Dr. Romeo Vitelli, Psychologist, at Novo Medical Services. A.V. underwent this psychological assessment within eight days of the hearing despite submitting a treatment and assessment plan ("OCF-18") to Certas for consideration approximately nineteen months earlier for a psychological assessment. The delay in undergoing a psychological assessment further indicates to me that A.V.'s psychological complaints were, and continued to be, minor; and

(vi) I do not accept Dr. Vitelli's diagnoses of A.V. and place little to no weight on Dr. Vitelli's report for the following reasons:

(a) There was inconsistent evidence at the hearing as to whether or not a Tamil interpreter was present for Dr. Vitelli's assessment of A.V. A.V. testified that one was present. Dr. Vitelli, however, claimed that A.V., "was able to complete the interview and psychometric testing with fluency" despite English not being her first language and made no note of an interpreter in his report. Dr. Vitelli also testified that a Tamil interpreter was not present for his assessment. Regardless of whether or not an interpreter attended the assessment, Dr. Vitelli conceded in his testimony that his report contained "inaccuracies," specifically in the background portion of his report, which were due to, as he testified, "misunderstandings during the interview." Therefore, if inaccuracies existed in at least one portion of his report, I therefore do not accept that there are no further inaccuracies in Dr. Vitelli's report as it was based, in part, on A.V.'s self-reporting;

(b) Dr. Vitelli failed to accurately report A.V.'s pre- and post-accident employment at a lottery kiosk despite his report stating that he reviewed Dr. Bruce Ballon's November 10, 2016 psychiatry IE report and Dr. Harry Kaufman's November 10, 2016 functional abilities evaluation IE report, both of which clearly discuss A.V.'s pre- and post-accident work at a lottery kiosk. Dr. Vitelli further testified that he was unaware of A.V.'s employment at the lottery kiosk;

(c) Dr. Vitelli also testified that he was not aware of other information that may have impacted his conclusions and/or diagnoses of A.V., such as A.V.'s husband being on the Ontario Disability Support Program ("ODSP") since 2016 and A.V.'s family encountering financial difficulties after the accident;

(d) Dr. Vitelli failed to identify what, if any, additional medical documentation, such as Dr. Choi-Fung's CNRs, that he reviewed as part of his assessment of A.V. in addition to the IE reports of Dr. Ballon and Dr. Kaufman, an April 11, 2016 disability certificate ("OCF-3") and a Novo Medical Psychological Pre-Screening dated September 4, 2018; and

(e) There is no indication of the duration of Dr. Vitelli's assessment of A.V.

18A.V. did testify that she worries when she was asked about her current psychological complaints. A.V. confirmed, however, that these worries were about finances and that she was bothered that her children were working part-time to support their family.

19I also accept that A.V. signed an excluded driver form effective July 28, 2018 which excluded her from any insurance coverage and her testimony that she stopped driving. A.V.'s evidence, however, was not altogether clear on when she stopped driving despite signing the excluded driver form. Nonetheless, I do not accept A.V.'s position that the only reason that she signed the excluded driver form was because she was too nervous to drive. A.V. still holds a valid driver's licence and she was unable to answer questions on cross-examination regarding any financial benefit derived from her removal as a driver on her family's insurance policy when the evidence was that her family was having financial difficulties.

20In summary, I have no evidence before me that any treating physicians or independent assessors, aside from Dr. Vitelli whose opinion I give little to weight to, provided a psychological diagnosis or any objective evidence that A.V. suffers from a psychological impairment as a result of the accident, nor any evidence that A.V. received any treatment for same. For all of the reasons set out above, I find that A.V. has failed to prove on a balance of probabilities that she sustained a psychological impairment as a result of the accident.

c) Chronic Pain

21A.V. submits that she should be removed from the MIG because she has been diagnosed with chronic pain syndrome.

22In analysing the issue of chronic pain and the MIG, A.V. submits that I should rely upon the reconsideration decision of T.S. v. Aviva General Insurance Canada,⁸ in which the Executive Chair held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.⁹ In that decision, the Tribunal described chronic pain as, "ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being (my emphasis added)."¹⁰

23On the other hand, Certas submits that the leading case regarding chronic pain and the MIG is 17-007825 v Aviva Insurance Canada.¹¹ In relying upon 17-007825, Certas submits that A.V.'s claim of chronic pain should be assessed against six criteria described in the American Medical Association ("AMA") Guides,¹² which state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

24A.V. did not contest the AMA Guides criteria and, in fact, made reply submissions in response to the six factors.

25I find that the two decisions relied upon by A.V. and Certas can be read harmoniously and both are persuasive in determining whether or not A.V. should be removed from the MIG as a result of chronic pain. In T.S. v. Aviva, the Executive Chair's description of chronic pain encompassed adverse affects on an individual's well-being and the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individual's functional capacity.

26Based on all of the evidence before me, however, and in consideration of both T.S. v. Aviva and 17-007825, I find that A.V. has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

27A.V. primarily relies upon a November 10, 2017 Report by Dr. A. Kachooie, physiatrist, in which Dr. Kachooie diagnoses A.V. with, among other conditions, chronic pain syndrome. I give little weight to Dr. Kachooie's two-page report and diagnosis of A.V. for the following reasons:

(i) Dr. Kachooie does not indicate if an interpreter was present at the assessment. According to A.V.'s testimony, one was not present and Dr. Kachooie's first language is not Tamil;

(ii) Dr. Kachooie's report contains information about A.V.'s post-accident work that is inconsistent with A.V.'s evidence. The report states that A.V., "has not been able to return back to any full-time job. She has been off work." A.V. testified that, prior to the accident, she worked two jobs, one at a lottery kiosk and the second as a factory worker at [a factory] packaging CDs. A.V. could not recall when she stopped working at [the factory] and only confirmed that she was not working there at the time of the hearing. Although there is inconsistent evidence as to the hours that A.V. worked at the lottery kiosk,¹³ A.V. testified that she continued to work the same duties, same/usual hours and in the same capacity in this position after the accident until September 2018. At that time, A.V. testified that she left the lottery kiosk because she was having memory difficulties and found it difficult to handle money. In addition to no evidence being before me that she left the lottery kiosk as a result of pain, Dr. Kachooie's report that A.V. had been off work since the accident is inconsistent with A.V.'s own evidence;

(iii) Despite diagnosing A.V. with chronic pain syndrome, Dr. Kachooie provides very little discussion on the impact of A.V.'s ongoing pain on her function. In addition to the inconsistency regarding her post-accident employment, Dr. Kachooie only generally states that A.V. finds it difficult to sit too long and perform housekeeping activities; and

(iv) there is no indication of how long Dr. Kachooie's assessment of A.V. was and also no information on what documents, if any, he reviewed as part of his assessment.

28I also place little weight on Dr. Choi-Fung's testimony that she agrees with Dr. Kachooie's diagnosis of A.V. with chronic pain syndrome not only because of the little weight that I give to Dr. Kachooie's diagnosis, but also because Dr. Choi-Fung only agreed with the diagnosis on the basis that A.V.'s condition had not resolved within six months. Dr. Choi-Fung failed to identify any functional component in her understanding of chronic pain syndrome.

29I do accept that as late as November 2018, A.V. made accident-related pain complaints to Dr. Choi-Fung. A.V. also made pain complaints to the IE assessors in October 2016. However, A.V. also completed an education course and became certified as a personal support worker ("PSW") post-accident. Although she testified that her marks were "poor," no documentary evidence was provided to support this position. It is also not clear from her testimony when she began this course, or its duration, as at one point, she testified it began in April 2018 and that it was three to six months in length. However, A.V. later testified that she completed her course on December 8, 2018, which would have been far greater than six months after April 2018. She also testified that she worked as a PSW in 2019 for fifteen or sixteen shifts but left this role as a result of its physical demands and her difficulties with concentration.

30As a result of A.V.'s continued employment post-accident at least at the lottery kiosk until September 2018, as the details of her employment at [the factory] are not clear, and her educational studies and albeit brief work as a PSW post-accident, I disagree with A.V. that she was not able to pursue work or had withdrawn from work post-accident as one of the criteria set out in 17-007825.

31Regarding the remaining criteria from 17-007825 and A.V.'s function, I do accept that A.V. relies upon her son to drive her places and her children and husband to complete household tasks. I do not find, however, that A.V.'s reliance upon her family members was excessive.

32I also disagree with A.V. that she had an excessive dependence upon health care providers. The evidence was that she saw each of Dr. Kachooie and Dr. Vitelli once only and that she saw Dr. Choi-Fung twelve times for accident related complaints over a two-and-a-half-year period from March 28, 2016 to November 8, 2018.

33There was no evidence that A.V. was dependent upon or abused any prescription medication or other substances. In fact, A.V. was prescribed no medication for any accident-related symptoms and only took extra strength Tylenol.

34Further, despite A.V.'s bald reply submission that she was, "constantly worried about engaging in activities that will make her pain worse,"¹⁴ this was not A.V.'s evidence at the hearing. A.V. testified that her worries arose in the context of financial difficulties and not as a result of fear of further pain from activities.

35I also accept that A.V. was the primary caregiver to her three children prior to the accident, the youngest of which was 9 years old when the accident occurred, and that A.V. remained the primary caregiver following the accident.

36Additionally, while A.V. testified that she could not attend her mother's funeral in Sri Lanka post-accident, the reasons for her non-attendance were not only her own opinion that she was not physically fit to travel for the 18-hour flight but also due to financial constraints. No evidence was led if she ever travelled back to Sri Lanka prior to the accident for any comparison.

37Finally, regarding the criteria of developing psychosocial sequelae post-accident, while A.V. made complaints regarding her fears of driving post-accident, she received no treatment following these complaints. A.V. also continued to drive at least into October 2016, when she reported driving during her IE assessments. Further, and as stated above, it is not clear as to when A.V. stopped driving.

38Therefore, based on all of the evidence before me, I find that A.V. has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain as she has failed to show how her ongoing pain adversely affects her well-being in light of the six factors set out in 17-007825.

39Sections 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.

40I find that A.V. is not entitled to the psychological assessment as she has failed to meet her onus¹⁶ of proving on a balance of probabilities that the assessment was reasonable and necessary for the following reasons:

(i) the treatment and assessment plan ("OCF-18") seeking the psychological assessment only lists physical conditions in the injury and sequalae description portion of the OCF-18. No further information was provided as to what gave rise to the recommended assessment at the time it was submitted to Certas for consideration;

(ii) While Dr. Choi-Fung recommended psychological counselling for A.V. on August 22, 2017, she failed to explain what gave rise to her recommendation as A.V. only complained of bad dreams and poor sleep to Dr. Choi-Fung on one occasion;

(iii) A.V. underwent a psychological assessment but it was completed by Dr. Vitelli as opposed to Ms. Gronkowska who was listed as the service provider on the original OCF-18 with no explanation for the change in service providers. The completion of the psychological assessment by a different service provider at a different clinic some nineteen months after the OCF-18 was submitted to Certas is evidence that the original OCF-18 for a psychological assessment completed by Ms. Gronkowska was not reasonable or necessary;

(iv) I give little to no weight to Dr. Vitelli's report, or to the diagnoses of A.V. contained therein, for the reasons discussed in paragraph 17 above; and

(v) Although A.V. has signed an excluded driver's form dated July 28, 2018, and ceased driving, this information and documentation was not in existence at the time the OCF-18 was submitted in September 2017.

Non-Earner Benefits (NEBs)

a) Period in dispute

41A.V. claims NEBs for the period of November 30, 2016 to date and ongoing.

42Certas, however, filed an OCF-3 dated September 26, 2018 completed by Avni Parmar, Physiotherapist, which indicates that A.V. did not suffer a complete inability to carry on a normal life.¹⁷ No further OCF-3s were filed as evidence by either party in this matter. Therefore, there was no completed application for NEBs before me that supported A.V.'s entitlement to NEBs beyond September 25, 2018.

43As a result, I find that the correct period in dispute for NEBs in this matter is from November 30, 2016 until September 25, 2018.

b) Entitlement

44I find that A.V. is not entitled to NEBs for the period of November 30, 2016 to September 25, 2018.

45The 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 a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

46Section 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.

47"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."¹⁸

48Both parties cited Heath v. Economical Mutual Insurance Company,¹⁹ 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.²⁰

49Heath also outlines several principles for the determination of entitlement to NEBs as follows:

(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.²¹

50Further, 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.²²

51A.V. described her pre-accident life as follows:

• She completed the household chores, including cooking and cleaning, with minimal help from her husband who suffered from glaucoma and diabetes;
• She was the primary caregiver for her three children, the youngest at the time of the accident was 9 years old, and she helped them with their studies and get ready for school;
• She would drive her children to the park, to the movies, to school and anywhere they wanted to go;
• She would attend parties three times per month, spend time with her friends, go to the movies twice a month and attend church every Sunday;
• She would put medication in her husband's eyes;
• She had a positive relationship with her husband including a positive intimate relationship;
• She was the breadwinner of her family as her husband had been on ODSP since 2006 and she was working two jobs. A.V. testified that she worked approximately two to three days per week at [a factory] for approximately four years prior to the accident and that she worked 30 hours per month at the lottery kiosk;
• She and her husband owned their own home that they resided in at the time of the accident; and
• She had no problems with her memory.

52A.V. failed to identify what period of time she engaged in these pre-accident activities. Furthermore, A.V. did not lead any evidence as to what pre-accident activities were more important to her.

53In her testimony, A.V. described her post-accident life as follows:

• She completed a three to six-month education course commencing in April 2018 and became certified as a PSW;
• She worked as a PSW for 15 days in 2019 but could not continue because it was a physical job and she had difficulties with concentration;
• Although she could not recall when she stopped working at [the factory], she confirmed that she was not working there at the time of the hearing;
• She worked at the lottery kiosk until September 2018 working her usual pre-accident hours and duties. She testified that she stopped working at the lottery kiosk due to memory issues and difficulties with handling money. She could not recall how much money she was paid in this position;
• As of the hearing date, she was not working;
• She and her husband sold their home because it was too difficult to maintain, which she further explained meant that she and her husband could not make their mortgage payments. She could not recall when she and her husband purchased their home but confirmed that she and her husband are now renting;
• Her family is now financially supported by her husband's ODSP, income from her children's part-time employment and borrowing money from others;
• She is no longer driving but still holds a driver's licence and hopes to return to driving;
• She signed an excluded driver form effective July 28, 2018 which excluded her from any automobile insurance coverage;
• She could not attend her mother's funeral in Sri Lanka due to financial constraints and her opinion that she was not physically fit to travel for the 18-hour flight; and
• She described her memory as "very poor," and gave examples of forgetting where she puts things, such as putting the sugar in the fridge.

54On cross-examination, A.V. also confirmed that for at least seven months post-accident, she was able to grocery shop, cook and sweep, albeit with pain, and that she was driving in late October 2016.

55A.V.'s husband also testified at the hearing. He testified that prior to the accident, he was only responsible for 10 percent of the housekeeping tasks with A.V. being responsible for the remainder. He also testified that A.V. was responsible for taking care of the children prior to the accident which included meal preparation, getting the kids to school, assisting with homework and laundry. Prior to the accident, he described A.V. as a happy person who enjoyed life and described going to the movies, eating at restaurants, going to the park and playing with their children with him.

56Post-accident, A.V's husband described her as follows:

• She would yell at him and their children;
• She would scare him in a vehicle, as she would worry about other vehicles on the roadway;
• She does not drive because she is nervous in a vehicle;
• She requires help with the household chores from their children;
• She sometimes joins him for social activities and attends church with him;
• Their intimate relationship has been negatively affected; and
• She was still the primary caregiver of their children but that she was not providing the same amount of caregiving that she did pre-accident.

57Although A.V. and her husband provided a comparison of A.V.'s pre- and post-accident activities, their descriptions of these activities were mostly very broad and often lacked details with respect to the frequency of some of the activities that were completed before the accident and most of the activities after the accident.

58I also do not agree that a comparison of A.V.'s employment pre- and post-accident supports her entitlement to NEBs. For example, apart from testifying that she was not working at [the factory] at the time of the hearing, there was no evidence when A.V. stopped working at [the factory]. It is also unclear if A.V. stopped working at the lottery kiosk during the period in dispute. A.V. testified that she stopped working at the lottery kiosk in September 2018 but did not provide the exact date. This missing information is important, as I found that the period in dispute is only until September 25, 2018. In any event, while I agree with the finding in Galdamez v. Allstate Insurance Company of Canada²³ that an insured's status as an employed person at the time of an accident does not in itself establish that the insured is ineligible for NEBs,²⁴ I find that A.V. did not meet the example given by the court in Galdamez²⁵ to satisfy the test for NEBs despite her post-accident return to work. Even though A.V. did not testify as to the activities that were of great importance to her pre-accident, the evidence was clear that she was the primary breadwinner of the family during that time and, as a result, I do not accept that her pre-accident employment at the lottery kiosk was not of great importance to her.

59I am also unable to place weight on A.V.'s claims of her memory changes from pre- to post-accident. There is no evidence of A.V. reporting any memory issues, to Dr. Choi-Fung, despite A.V.'s testimony that if she had memory issues prior to the accident, she would have reported these issues to Dr. Choi-Fung.²⁶ In fact, there is no objective medical evidence of any memory impairments or even complaints of memory issues. The only medical documentation about A.V.'s memory post-accident is found in Dr. Ballon's IE report in which he notes that A.V.'s memory and concentration were good.²⁷

60I also give no weight to A.V. ceasing work as a PSW in 2019 as this evidence is outside of the period in dispute. Additionally, my comments above in paragraph [29] regarding A.V.'s functionality in my analysis of A.V.'s claim that she suffered from chronic pain apply equally to her testimony and her claim for NEBs.

61A review of A.V.'s documentary evidence also demonstrates that she is not entitled to NEBs for the period in dispute. For example, A.V. submitted an OCF-3 dated April 11, 2016 that was completed by Ms. Shah who indicated that A.V. suffered a complete inability to carry on a normal life. This OCF-3, however, stated that the anticipated duration of A.V.'s injuries were nine to twelve weeks and, therefore, this period expired before the period in dispute for NEBs commenced. In any event, an OCF-3 alone is not enough to establish entitlement to NEBs.

62Dr. Choi-Fung's CNRs also do not support A.V.'s entitlement to NEBs as there is no comparison in the notes between A.V.'s pre- and post-accident functioning. Furthermore, the only reference to any post-accident functioning in Dr. Choi-Fung's CNRs is on August 22, 2017 when Dr. Choi-Fung reports that A.V. was working part-time due to her back pain and that she was not sleeping well.

63Moreover, for the reasons stated above, I give little to no weight to Dr. Kachooie's and Dr. Vitelli's report and any information contained therein regarding A.V.'s entitlement to NEBs.

64In contrast, Certas relied upon a November 10, 2016 psychiatry IE assessment report by Dr. Ballon and a physiatry IE assessment report by Dr. Fox both of which were performed with an interpreter present to specifically address A.V.'s entitlement to NEBs. Both assessors concluded that A.V. did not suffer a complete inability to carry on a normal life as a result of the accident.

65Therefore, based on the generalized testimony from A.V. and her husband, the lack of an OCF-3 that supported A.V.'s entitlement to NEBs during the period in dispute, the lack of medical documentation that I can give weight to that compares A.V.'s pre- and post-accident functioning to support A.V.'s entitlement to NEBs and the unrefuted IEs relied upon by Certas, I find that A.V. has failed to meet her onus of proving on a balance of probabilities that she has suffered a complete inability to carry on a normal life as a result of the accident. Therefore, I do not find that A.V. is entitled to NEBs for the period of November 30, 2016 to September 25, 2018.

Interest

66Because I have found that there are no benefits or costs that are overdue, no interest is payable.

Award

67A.V. is not entitled to an award because I have found that there are no benefits or costs owing to her. A.V. also failed to make any submissions on this issue in dispute.

CONCLUSION

68For the reasons outlined above, I find:

(i) I find that A.V. has failed to prove on a balance of probabilities that she suffers from psychological issues or chronic pain arising from the accident and, as a result, her injuries do not fall outside of the MIG;

(ii) A.V. is not entitled to the OCF-18 for the psychological assessment as she failed to prove that it was reasonable and necessary on a balance of probabilities;

(iii) A.V. is not entitled to NEBs for the period of November 30, 2016 to to September 25, 2018 as she failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident;

(iv) A.V. is not entitled to interest or an award; and

(v) This application is dismissed.

Released: March 2, 2020

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance Co., 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 42017 CanLII 59515 (ON LAT) [16-000438]
5. 52018 CanLII 112107 (ON LAT) [17-005791].
6. 6Ibid. at para. 17.
7. 7Closing Submissions of the Applicant, page 4.
8. 82018 CanLII 83520 (ON LAT) ("T.S. v. Aviva").
9. 9Ibid. at para. 20.
10. 10Ibid. at para. 23.
11. 112018 CanLII 98282 (ON LAT) ("17-007825").
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
13. 13A.V. testified that she worked 30 hours per month whereas Dr. Harry Kaufman's Functional Abilities Evaluation IE report dated November 10, 2016 at tab 8 of the Respondent's Document Brief states that A.V. reported working 30 hours per week (page 4).
14. 14Reply Submissions of the Applicant, page 8.
15. 16Supra note 3.
16. 17Respondent's Document Brief, tab 5.
17. 1816-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
18. 192009 ONCA 391 ("Heath").
19. 20Ibid. at para. 50.
20. 21Ibid.
21. 2216-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
22. 232012 ONCA 508 ("Galdamez").
23. 24Ibid. at para. 43.
24. 25Ibid. at para. 44.
25. 26Excerpt of the Transcript of Proceedings on April 16, 2019, page 144, line 121.
26. 27Respondent's Document Brief, tab 7, page 4.
27. 15The evidence at the hearing was that the $3,500.00 monetary limit for medical benefits under the MIG had not been exhausted. As a result, I must consider the reasonableness and necessity of the treatment plan for the psychological assessment despite my finding that A.V.'s injuries do not fall outside of the MIG.