Citation: H.M. vs. The Dominion of Canada General Insurance Company, 2020 ONLAT 19-001752/AABS

Released Date: 04/29/2020

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:

H. M.

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Kevan Wylie, Counsel

For the Respondent:

Christopher McCormack, Counsel

HEARD: By way of written submissions

1The applicant, H.M., seeks a determination that she is entitled to a claim for a non-earner benefit (‘NEB’), a medical benefit, award and interest.

2H.M. was involved in an automobile accident on May 13, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

3The respondent, The Dominion General Insurance Company of Canada (‘Dominion’), takes the position that H.M. did not suffer a complete inability to carry on a normal life as a result of the accident and is therefore not entitled to a non-earner benefit. Further, Dominion also contends that H.M. has not proven that the medical treatment which she seeks is reasonable and necessary.

4H.M. disagreed with Dominion’s position and filed her application for dispute resolution with the Licence Appeal Tribunal – Automobile Accident Benefits Service (‘the Tribunal’).

ISSUES

5The issues I must determine are as follows:

a. Is H.M. entitled to receive a non-earner benefit in the amount of $185.00 per week for the period June 10, 2018 to date and ongoing?

b. Is the medical benefit in the amount of $3,043.20 for psychotherapy treatment recommended by Injury Management & Medical Assessments in a treatment plan (OCF-18) submitted on June 12, 2019, and denied on June 26, 2019, reasonable and necessary?

c. Is H.M. entitled to an award under Ontario Regulation 664 because Dominion unreasonably withheld or delayed the payment of benefits?

d. Is H.M. entitled to interest on any overdue payment of benefits?

RESULT

6Based on a review of the evidence, I find that H.M. is not entitled to a NEB or medical benefit and is therefore not entitled to interest or an award.

LAW

NEB test

7Section 12 of the Schedule requires an insurer to pay a non-earner benefit (“NEB”) to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident.

8Section 3(7)(a) explains that “a person suffers a complete inability to carry on a normal life […] 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”.

9Under s. 12(3) the insurer is not required to pay a non-earner benefit for the first four weeks after the onset of the complete inability to carry on a normal life.

ANALYSIS

Do H.M.’s complaints and alleged difficulties meet the threshold of a "complete inability to carry on a normal life"?

10In determining this dispute, I have considered and applied the principles for meeting the test for NEB entitlement as articulated by the Court of Appeal in Heath v. Economical Mutual Insurance Company¹ (“Heath”).

11The principles from Heath are as follows:

a. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

b. 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.

c. 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.

d. 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.

e. “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.

f. 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.

12The Court of Appeal in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508 (“Galdamez”) establishes that the Tribunal must consider the importance of pre-accident activities in the applicant’s life prior to the accident when determining entitlement to NEBs. Galdamez also points out that an applicant does not have to have a complete inability in literally “all” activities in order to meet the test for entitlement to NEBs.

13Many of the concepts and principles set out in Heath are similar to those contained in Galdamez. In both decisions, the Court of Appeal directs decision-makers to assess the importance of pre-accident activities in the lives of applicants and the extent that the applicant is realistically able to participate in those activities after the accident.

14H.M. bears the burden of proof to establish that she is entitled to the NEB on a balance of probabilities. For the reasons that follow, I find that H.M. has not persuaded me that she meets the test of entitlement for an NEB.

A. Pre-Existing Injuries and Impairments

15On December 21, 2016, diagnostic tests showed bilateral shoulder supraspinatus tendinosis and degenerative disc disease at C5-C7.² In January 2017, H.M. complained of fatigue, chest pains, bilateral hand pain, and shooting pains up the arms, neck, shoulders, and back. Her family physician, Dr. Welling, queried whether H.M. was suffering from fibromyalgia. H.M. was prescribed Cymbalta, an anti-depressant.³

16In February and March 2017, H.M. complained of fatigue, impaired grip, and pain to the arms, neck, shoulders, and back. She could not tolerate even light touch on joints and muscles. H.M. reported to Dr. Welling that she could not tolerate any physical work. She was diagnosed with fibromyalgia and carpal tunnel syndrome, and prescribed Lyrica.⁴

17On December 3, 2017, H.M. complained of headaches and pain and tenderness in the head, jaw, neck, shoulders, hips, back, legs, and wrist. She was again diagnosed with fibromyalgia and prescribed Lyrica, massage, and physiotherapy.⁵

18On February 28, 2018, H.M. attended Physiotherapy Centre and was diagnosed with cervical spondylosis and left shoulder tendinopathy.⁶ On March 4, 2018, two months pre-accident, she complained of headaches and worsening neck pain, with paresthesia and shooting pain down the spine and left arm. H.M. was prescribed Lyrica, massage, and physiotherapy.⁷

19On May 6, 2018, a week before the accident, H.M. complained of worsening lower back pain and right hip pain radiating down the right lower limb. The pain was worse with movement and ambulation. She was very tender to the touch and had difficulty sleeping due to pain. H.M. was diagnosed with mechanical low back pain/sciatica and prescribed acetaminophen, massage and physiotherapy.⁸

B. Post-Accident Treatment and Function

20The first post-accident consultation note of Dr. Welling is from May 16, 2018. There is no mention of the accident or pain complaints in the consultation note. Dr. Welling completed an Ontario Disability Support Program (‘ODSP’) Application for Special Diet Allowance. The next consultation note is from May 26, 2018. There is no mention of the accident.⁹

21On July 19, 2018, Dr. Welling completed an ODSP Health Status Report for H.M. He diagnosed her with fibromyalgia and tension headaches affecting sleep. There is no mention of the accident in the report. The complaints are the same as those noted before the accident on May 6, 2018.¹⁰ The ODSP application was denied on December 28, 2018. The ODSP determined H.M. did not have a substantial physical or mental impairment and was not a person with a disability.¹¹

22H.M. saw Dr. Welling on August 18, 2018, in relation to ODSP forms. Dr. Welling noted: “her social worker wants me to add depression and PTSD to her forms.” H.M. stated she had previously taken Cipralex, an anti-depressant. There is no mention of the accident in the consultation note, nor any connection made between the accident and depression or PTSD in the records of Dr. Welling.¹²

23On November 4, 2018, H.M. was diagnosed with a left shoulder rotator cuff tear. The accident is not mentioned in the consultation report.¹³ There is no mention of the accident in the consultation notes of Dr. Welling from 2019.

24H.M.’s submissions do not support any theory that her self-reported post-accident activities were so exceptional and restricted by pain as to have been “practically prevented”. Her account of her post-accident activities to the s. 44 assessors does not support an assertion that she was continuously prevented from engaging in substantially all of her pre-accident activities.

25H.M. relied on a Disability Certificate (‘OCF-3’) in support of her claim for an NEB. The OCF-3, completed by Chiropractor Jayesh Mistry noted that H.M. suffered the following injuries: “adhesive capsulitis of the shoulder, tear of the supraspinatus tendon, impingement syndrome of the shoulder, and bursitis of the shoulder”. In addition, H.M. suffered “a sprain/strain of the ribs and sternum, sprain/strain of the cervical spine, sprain/strain of the thoracic spine, pain in the thoracic spine, low back pain, sprain/strain of the lumbar spine and headaches”.

Dr. Getahun report

26H.M. directed me to an assessment report¹⁴ generated by Dr. Getahun. I am not persuaded by the report of Dr. Getahun that H.M. suffered a complete inability to carry on a normal life.

27On page 6 of his report, Dr. Getahun opines on the impact of the accident on H.M. Dr. Getahun states:

H.M. has not been able to return to her pre-accident level of house-keeping and home maintenance duties. She has not been able to return to her pre-accident level of socializing and exercising. In my opinion she suffers a complete inability to carry on a normal life currently.

28Dr. Getahun concludes that H.M. exhibited generally normal range of motion with some limitations due to pain.

29There is no objective evidence in Dr. Getahun’s report that supports a complete inability to carry on a normal life. I am challenged to agree with Dr. Getahun because his opinion that H.M. suffers a complete disability, I find, contradicts the test results.

Dr. Jaroszynski report

30Dominion relied on the report of its assessor, Orthopaedic Surgeon Dr. Jaroszynski, in support of its denial of the NEB. Dr. Jaroszynski performed similar physical examinations to those of Dr. Getahun. The results, revealing general range of movement, are similar to the findings of Dr. Getahun.

31As a result of testing and history, although there were some limitations and pain complaints, Dr. Jaroszynski opined that:

The accident is compatible with causing a minor chest-wall contusion from the seatbelt, possible cervical and lumbar sprain/strain. At this time, there is no evidence of ongoing impairment attributable to the accident. The diagnosis of left rotator cuff tear with severe tendinopathy is a degenerative, non-traumatic entity and is not in any way related to the accident.

32Dr. Jaroszynski also opined that H.M. showed mild limitations with her range of motion. Dr. Jaroszynski concludes that H.M. does not suffer a complete inability to carry on a normal life.

33Although both Drs. Getahun and Jaroszynski conducted similar range of motion testing, they came to contradictory conclusions.

34I prefer and am persuaded by the report of Dr. Jaroszynski because the assessments results do not support a complete inability to carry on a normal life, which is in line with the opinion of Dr. Getahun on H.M.’s range of motion and limitations due to pain.

C. Insurer Examinations

35I am further persuaded by the evidence of the other s. 44 assessors that H.M. does not suffer a complete inability carry on a normal life.

36H.M. attended an insurer examination (“IE”) with occupational therapist (“OT”) Maria Roth on January 14, 2019. The applicant reported that, before the accident, she was unemployed and independent with personal care, meal preparation, housekeeping, and other activities of daily living. After the accident, she continued to be independent with personal care, meal preparation, and light household tasks. Post-accident, H.M. went to the gym 2-3 times per week instead of 3-4 times per week. She continued to drive short distances and go to the mall to socialize with friends. H.M. was going to Toronto from Kitchener less frequently than before the accident.

37Upon testing, Ms. Roth noted H.M. had functional range of motion in the lumbar spine, right upper extremity, and bilateral lower extremities. Ms. Roth further reported that H.M. demonstrated functional mobility within the home and was able to reach a squatting and kneeling position. Ms. Roth opined that H.M. did not suffer a complete inability to carry on a normal life as a result of the accident and did not require attendant care services.¹⁵

38H.M. underwent an s. 44 psychology assessment by Dr. Ratti on January 30, 2019.¹⁶ She again reported that she continued to drive short distances and perform light housekeeping tasks. She went window shopping less frequently than before the accident. H.M. displayed a normal range of affect (psychologically, as a result of the accident) and did not exhibit any visible emotional distress. Dr. Ratti opined that H.M. presented with mild to low-moderate symptoms of emotional distress that did not meet the criteria for a mental health diagnosis. Dr. Ratti concluded that H.M. did not suffer a complete inability to carry on a normal life as a result of the accident.

39My finding that H.M. did not suffer a complete inability to carry on a normal life as a result of the accident is further supported by Heath and Galdamez from the Court of Appeal and Tribunal jurisprudence. While I am not bound by the decisions of my fellow adjudicators, I do find the case law effective in assisting and considering the requirements for the test for “complete inability”.

40In Applicant and Aviva Insurance Canada, Adjudicator Ferguson held that to assess whether an insured person meets the threshold for entitlement to NEBs, decision-makers “need an accurate accounting of the insured person’s normal activities both before and after the accident. A comparison of pre- and post-accident functionality is essential to establishing entitlement to NEBs”.¹⁷

41Tribunal jurisprudence has also established that where accident-related pain is a primary factor that prevents an insured person from engaging in her pre-accident activities, the insured must prove that the pain practically prevents her from engaging in the pre-accident activities.¹⁸

42Ongoing pain and partial reduction in functional abilities as a result of an accident is not sufficient to meet the test for NEBs.¹⁹ In addition, in order to determine whether an insured suffers from a complete inability, it is helpful to have an account of an insured’s pre- and post-accident level of ‘ability to carry on a normal life’. What activities (that were essential for a ‘normal life’) an insured substantially participated in pre-accident is necessary to understand what level of ability the insured has post-accident.

43H.M. has not provided a detailed account of which activities were most important to her pre-accident, that she suffers a complete inability to engage in post-accident, as set out in Galdamez. In addition, the evidence of her reports to Ms. Roth and Dr. Ratti shows that H.M. has actually been able to participate in substantially all her pre-accident activities, albeit at a somewhat reduced rate.

44As stated earlier, the test for complete inability is a lack of ability to participate in substantially all pre-accident activities. H.M.’s evidence supports the complete opposite. Participating in activities, with pain, is not enough to meet the requirements of the NEB test. H.M.’s reduced level of participation in almost all of the same pre-accident activities, does not satisfy H.M.’s burden to prove that she suffers a complete inability to carry on a normal life.

45For the reasons stated above, I am not persuaded that from a physical or psychological level of impairment, H.M. suffers from a complete inability to carry on a normal life as a result of the accident. Consequently, I do not find that H.M. is entitled to an NEB.

Is the OCF-18 for psychotherapy reasonable and necessary?

46Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.²⁰

47H.M. relied on a report from Psychologist, Dr. Leanne Wagner in support of her claim for the June 12, 2019 ICF-18. Based on the evidence, I find that the disputed OCF-18 is not reasonable and necessary.

48Dr. Wagner conducted a series of commonly administered psychological tests in order to whether H.M. suffered psychological impairment as a result of the accident. Based on H.M.’s self-reporting, Dr. Wagner opines that H.M. “has been experiencing emotional distress since the accident, mostly in the form of symptoms of mild depression and moderate anxiety”. Dr. Wagner goes on to state that “”it is clear that H.M.’s emotional status post-accident is worse than it was prior to the accident”. Dr. Wagner concludes that H.M. suffers from “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and Query: Specific Phobia-Situational Type – Driver”.

49Despite this report, I find that H.M. has not established the OCF-18 is reasonable and necessary.

50My finding is based on the following evidence:

a. In an August 18, 2018 note, Family Physician, Dr. Welling stated H.M.’s “social worker wants Dr. Welling to add depression and PTSD to her ODSP forms.” H.M. has not submitted evidence that the social worker was qualified to diagnose a psychological impairment or that the alleged depression and PTSD are related to the accident. Dr. Welling did not reference the accident in any note addressing depression or PTSD;

b. Dr. Wagner stated in her report that the diagnosis of accident-related psychological impairments was “based on the fact that H.M. was functioning relatively well prior to the accident”. This contradicts the records of Dr. Welling, which show H.M. was unemployed and had reduced physical (my emphasis) functioning before the accident. It should be noted that Dr. Wagner did not review any clinical notes and records when preparing her report. She based her opinion on H.M.’s self-reporting; and

c. In the Social Services Assistance Assessment dated December 28, 2018, a decision is rendered indicating that H.M is “not a person with a disability”. On page 2 of the decision, as a result of psychological testing, it notes that “the information provided does not support this (post-traumatic stress disorder) level of symptomatology…the impairments are not considered substantial”. The decision concludes with “this person [H.M.] has not been found to be a person with a disability within the ODSP Act”. The reason given is that H.M. “does not have a substantial physical or mental impairment”.

51There are no accident-related psychological diagnoses in the records of treating practitioners. The evidence indicates that H.M.’s post-accident complaints are a continuation of her pre-accident complaints.

52For the reasons stated above, I find that psychological treatment is not required as a result of the accident. Therefore, H.M. is not entitled to the OCF-18 for psychotherapy treatment.

AWARD

53Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. H.M.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Dominion) has “unreasonably” withheld or delayed payments.

54I have already found that H.M. is not entitled to a NEB or the OCF-18, therefore Dominion cannot be found to have unreasonably withheld payment. As such, H.M. is not entitled to an award.

CONCLUSION

55H.M. has not met the onus on her to persuade me that she suffered a complete inability to carry on a normal life or that the OCF-18 is reasonable and necessary. She is therefore not entitled to a NEB or the OCF-18 and no interest is owing as there is no overdue payment of benefits.

56H.M. is not entitled to an award.

57H.M.’s claim is dismissed.

Released: April 29, 2020

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