Z. J. R. v. Intact Insurance Company, 2020 CanLII 57375

Citation: Z. J. R. vs. Intact Insurance Company, 2020 ONLAT 18-006898/AABS

Released Date: 07/29/2020

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:

Z. J. R.

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Raj Sharda

APPEARANCES:

For the Applicant:

Z. J. R., Applicant

Yu Jiang, Paralegal

For the Respondent:

Intact Insurance Company, Counsel

O. Itse Ezomo, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on May 19, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant was riding a bicycle when a vehicle existing a parking lot hit him and he fell to the ground on his face. His bicycle was bent underneath the vehicle.

3He was transported to hospital by ambulance. He underwent diagnostic imaging and was diagnosed as having suffered injuries to his chest and lower left leg. The leg had a puncture wound and was swollen.

ISSUES IN DISPUTE

4The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to non-earner benefits in the amount of $185.00 per week from November 17, 2016, to date and ongoing?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,649.86 for chiropractic services recommended by Perfect Physio & Rehab Centre in a treatment plan (OCF-18) submitted on October 19, 2016, and denied on November 11, 2016?

(iii) Is the applicant entitled to a medical benefit in the amount of $2,480.64 for chiropractic services recommended by Perfect Physio & Rehab Centre in a treatment plan (OCF-18) submitted on March 10, 2017, and denied on March 22, 2017?

(iv) Is the applicant entitled to a cost of examination in the amount of $2,000.00 for a psychological assessment by Perfect Choice Psychological Services submitted on October 12, 2016, and denied on November 6, 2016?

(v) Is the applicant entitled to interest on any overdue payment of benefits?

PRELIMINARY MATTER

5The respondent in its submissions advises that issues 4 (ii) and 4 (iii) were approved prior to the hearing date and hence are no longer issues in dispute. The applicant submissions do not reference this approval and no reply submissions were provided by the applicant to contradict the respondent’s position regarding the resolution of these two issues in dispute.

6The hearing proceeded only on issues 4 (i) and 4 (iv).

EVIDENCE

Non-earner benefit

7The applicant relies upon his report to the respondent’s adjuster as evidence of his pre- and post-accident behaviour. Further, Dr. Day, the Psychologist who conducted the insurer’s examination (IE) on November 16, 2016, confirmed that the applicant has not ridden a bike since the accident and is anxious when he sees bicycles riding fast. The applicant cannot play with his youngest grandson as he did before because he cannot pick him up. However, the applicant “is still able to engage in various activities with his grandson”.¹

8Other than the above few restrictions, the applicant indicated to Dr. Day that his pre-accident daily routine and post-accident daily routine is about the same.

9The witness statement from the adjuster was submitted to show the applicant’s pre-accident and post-accident conditions. This statement was given on June 13, 2016.

10The applicant did not submit any other evidence as to the applicant’s pre-accident and post-accident conditions. As such, the adjudication of the applicant’s claim for a non-earner benefit will be based on a review of the applicant’s statement and Dr. Day’s observations of the applicant in his IE report.

11In his witness statement, the applicant states that just under a month after the accident he was still suffering predominately chest pains and neck pains to a lesser extent. He said “I no longer have pain in my left leg. At this point in time my right chest pain is the worst. My neck pain is getting better and my left leg pain is gone”.²

12In regards to personal self care activities, the applicant stated “Before the accident I was capable of all my personal self-care activities such as bathing, toileting, getting dressed and undressed, brushing my teeth and those type of activities. I have remained capable of my normal personal self-care activities since the accident with some pain”.³

13The applicant therefore reported that, other than 2 areas where he was conducting pre-accident activities but with some pain, he was able to engage in substantially all of his pre -accident activities that he ordinarily had engaged in.

The OCF-18 dated October 18, 2016 for a psychological assessment

14The applicant does not indicate to Dr. Day any sleep problems; however, he did report them to Dr. Yeh, his physician.

15Dr. Day states that, on the Pain Catastrophizing Scale (PCS), the applicant does not indicate a presence of dysfunctional thoughts and catastrophizing in response to pain.

16The applicant states that, his daily living limitations after the accident where,

a. He could not ride his bicycle which was previously his primary mode of transportation, and,

b. The applicant’s walks which were previously pain-free however, now he experiences pain when he takes them and as a result of the pain, he must rest often during them.

17Dr. Day conducted an in-depth clinical interview in which the applicant states to Dr. Day that he experienced a transient low mood one day a week.

18Based on the applicant’s reports to him, Dr. Day states the applicant did not exhibit any symptoms of mood, psychotic, substance-related, anxiety, trauma and stressor-related, post traumatic stress or somatic symptom disorders.

19The applicant also did not meet any of the criteria for a psychiatric disorder.

20However, the applicant had not returned to riding his bike and was experiencing intrusive and distressing memories of the accident while awake, “especially when he saw cyclists going fast during rush hour”.

21In reviewing the OCF-18, this treatment plan states under Evaluation, “an in-depth clinical interview will be conducted together with the administration of various inventories to determine the presence and extent of the applicant’s severity of psychological impairments”.⁴

22The OCF-18 also proposes a short course of psychotherapy to address the applicant’s depression, anxiety, irritation and frustration.

LAW

Non-earner benefit

19The test for entitlement to a non-earner benefit is set out in s. 12(1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all the activities in which the person ordinarily engaged before the accident.

20In Heath v. Economical Mutual Insurance Company,⁵ the Court of Appeal for Ontario outlined several principles to be considered when determining an insured person’s entitlement to a non-earner benefit. These principles guide my analysis regarding the applicant’s entitlement to a non-earner benefit.

21These principles include

(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those activities following the accident.

(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

(iii) All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on the activities which were of greater importance to the applicant’s pre-accident life.

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

(v) Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity. Therefore, “engaging” should be interpreted from a qualitative perspective.

(vi) If pain is the primary reason which is preventing an applicant from engaging in their former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

ANALYSIS

Non-Earner benefit

22The applicant’s own statements to Dr. Day and the respondent’s adjuster confirm that he does not suffer a complete inability to carry on a normal life.

23Other than having some pain in the chest and some difficulty in lifting his youngest grandson, the applicant can perform all off his pre-accident activities.

24As such, based on the evidence before me the applicant does not qualify for a non-earner benefit as he has not experienced a complete inability in his daily activities when compared to his pre-accident activities.

Psychological Assessment

25The OCF-18 was focused on the recommendation that an assessment to determine what psychological interventions are required for the applicant needed to be conducted. In addition, a short course of psychotherapy sessions to assist with the applicant’s depression, anxiety, irritation and frustration was indicated.

26Dr Day did conduct an in-depth assessment and found the applicant did not suffer from any psychological disorders. However, he did identify two distinct psychological symptoms, namely that the applicant had not returned to riding his bicycle and was experiencing intrusive distressing memories of the accident while awake, “especially when he saw cyclists going fast during rush hour”.

27It would therefore appear that the short course of psychotherapy would be reasonable and necessary for the applicant to reach maximal recovery from his residual psychological symptoms. The Psychological assessment recommended was conducted by Dr. Day, and hence would not be necessary or reasonable.

28The short course would however, assist the applicant to recover from the intrusive distressing memories, and his return to biking. Although, the OCF 18 did not address the value of the short program. It would be reasonable to allocate the value of the assessment of $1,450.00 to this short program.

29The respondent’s submission do not address how to resolve the remaining intrusive distressing memories and the fact that the applicant could not return to driving his bike which previously was his main source of transportation.

30Therefore, a short program not to exceed $1,450.00 would be reasonable and necessary to address these two remaining psychological aspects of the applicant’s injuries arising from the accident.

CONCLUSION

31For all the above reasons, the Tribunal finds that the applicant:

i. is not entitled to the non-earner benefit;

ii. is entitled to a short program of treatment to the value of $1,450.00, and

iii. is entitled to interest on that OCF-18 in accordance with s. 51 of the Schedule;

Footnotes

1. 1Dr. Day’s November 25th, report page 8.
2. 2Applicant’s statement of June 16th, 2016 page 7.
3. 3Applicant’s statement of June 16th, 2016 page 7.
4. 4OCF-18 dated October 12, 2016 page 6.
5. 5Heath v. Economical Mutual Insurance Company, 2009 ONCA 391