F.K. v. TD Home and Auto Insurance Company, 2020 CanLII 58736

Citation: F.K. vs. TD Home and Auto Insurance Company, 2020 ONLAT 18-008114/AABS

Released Date: 07/31/2020

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:

F.K.

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

F.K. Applicant

For the Respondent:

Paul Omeziri, Counsel

HEARD: In-Person:

September 30 and October 1, 2019

OVERVIEW

1The parties dispute the applicant’s entitlement to a non-earner benefit, an attendant care benefit, and a treatment and assessment plan.

2The applicant was involved in a motor vehicle accident on December 3, 2010. She applied for and received benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”). The applicant then applied for a non-earner and attendant care benefit which the respondent denied as it took the position that the applicant’s accident related injuries were minor in nature and did not warrant entitlement to the benefits sought. The respondent also denied entitlement to a treatment plan for psychological services submitted by the applicant as it relied on its assessor’s opinion that the proposed treatment was not reasonable and necessary given the applicant’s accident related injuries.

3The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to an in-person hearing.

ISSUES IN DISPUTE

4The following issues are in dispute:

I. Is the applicant entitled to receive a non-earner benefit in the amount of $185 weekly for the period of June 3, 2011 to date and ongoing?

II. Is the applicant entitled to receive an attendant care benefit in the amount of $2,072.78 per month for the time period from December 3, 2010 to date and ongoing?

III. Is the applicant entitled to receive medical benefits in the amount of $14,249.57 for psychological services recommended by Healthmax Physio in a treatment plan submitted on August 25, 2015, and denied by the respondent on October 8, 2015?

IV. Is the applicant entitled to interest on any overdue payment of benefit?

V. Is the applicant entitled to receive an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?

RESULT

5Based on the evidence before me, I find that the applicant is not entitled to a non-earner benefit or an attendant care benefit. I also find that the applicant is statute barred from proceeding with her claim for the psychological services in dispute as she failed to dispute the denial of the treatment plan within the 2-year limitation period imposed by the Schedule. As a result, the applicant is not entitled to an award or interest.

NON-EARNER BENEFIT

6The test for entitlement to a non-earner benefit is set out in s. 12(1) of the Schedule. Section 12(1) states that an insurer shall pay a non-earner benefit to an insured person who suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

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

8The phrase “substantially all” is not defined in the Schedule. In the case of Galdamez v. Allstate Insurance Company of Canada¹ the Court of Appeal held that “substantially all” does not mean “all”. Arbitration decisions from the Financial Services Commission of Ontario [FSCO] have held that “substantially all” means “more than most, a goodly number or a majority of the pre-accident activities.”² While I am not bound by FSCO decisions, I find the definition of assistance and interpret the phrase “substantially all” to mean more than most, a majority, but not all activities.

9The applicant bears the onus of establishing on a balance of probabilities, that she is entitled to the non-earner benefit as claimed. Based on the evidence before me, I find that the applicant has not met her onus.

10The applicant testified that she suffered from neck, shoulder, back and knee pain as a result of the accident. She also explained that the accident caused her to suffer from severe and constant headaches as well as dizziness and blurred vision, that she uses a cane and walker to move around, has problems with her hearing and cannot sleep properly due to her accident related injuries. She submits that these accident related injuries and impairments cause her to suffer from a complete inability to carry on a normal life.

11The applicant submitted three Disability Certificates (OCF-3) dated May 6, 2011, November 28, 2011 and March 14, 2012 with respect to this accident. All three disability certificates assert that the applicant does meet the test for non-earner benefits.

12After the hearing had concluded, the applicant sought permission to submit a fourth OCF-3 dated June 26, 2015. The OCF-3 was completed by Dr. Rod, physician. Dr. Rod diagnosed the applicant with “other chronic pain, cervicalgia, lumbar and other intervertebral disc disorders with radiculopathy, nonorganic sleep disorders, internal derangement of knee, moderate depressive episode and organic anxiety disorder. The OCF-3 indicates that the applicant meets the test for non-earner benefits and that the anticipated duration of the disability is “more than 12 weeks.” The applicant explained that she had tried to get the OCF-3 prior to the start of the hearing but that it was in the possession of her previous counsel who would not release the document to her. I have admitted the OCF-3 into the evidentiary record but have given it little weight. The OCF-3 was completed approximately 3 years after the previous OCF-3 was submitted and no reports or clinical notes and records were submitted which would help me understand the change in the applicant’s condition.

13In addition to this, the evidence before me establishes that the applicant was involved in a motor vehicle accident on August 24, 2008 and that she met the test for a non-earner benefit as a result of that accident. Dr. Soriano completed an insurer’s orthopaedic assessment dated March 5, 2009. Dr. Soriano found that the applicant was suffering from pain in her neck, lower back and shoulders and that she was suffering from severe constant and diffuse headaches as well as dizziness and blurred vision. Dr. Soriano concluded that the applicant met the test for a non-earner benefit due to her severe headaches.

14Dr. Davidson conducted an insurer’s psychological assessment of the applicant on November 15 and December 9, 2010. The assessment was with respect to the August 24, 2008 accident and made no mention of the December 3, 2010 accident. Dr. Davidson diagnosed the applicant with Pain Disorder Associated with both Psychological Factors and a General Medical Condition. Dr. Davidson completed an addendum report dated December 30, 2010, wherein she confirmed her previous diagnosis. Dr. Davidson further concluded that the applicant met the test for a non-earner benefit as a result of her psychological response to the August 24, 2008 accident.

15The respondent submits that this raises a causation issue as the applicant’s current complaints mimic the ones that supported her entitlement to a non-earner benefit following the August 24, 2008 accident. I agree with the respondent’s submission in this regard. Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878, para. 25 confirm that the default test for determining causation in accident benefit cases is the “but for” test. Only in rare and exceptional circumstances, where it is impossible to prove the cause of the applicant’s injuries using the “but for” test, can an applicant prove causation by indicating that the respondent’s conduct “materially contributed” to the risk of the injury. This is not one of those cases. In this case, the applicant bears the onus of establishing, on a balance of probabilities, that she has met the “but for” test. The applicant has failed in this regard as there is very little evidence before me which speaks to the applicant’s entitlement to a non-earner benefit as a result of the December 3, 2010 accident.

16The applicant’s belief that she was “getting back to normal” just prior to the 2010 accident is not supported by the evidence before me. Dr. Davidson’s findings as noted above, is just one example of many, that suggest that the applicant was not “getting back to normal” just prior to the 2010 accident. The causal connection between the applicant’s entitlement to a non-earner benefit has simply not been made and as such I find that the applicant is not entitled to a non-earner benefit as claimed.

ATTENDANT CARE BENEFIT

17As per section 19 of the Schedule, the applicant would be entitled to an attendant care benefits up to a maximum of $3,000.00 per month for the first 104 weeks after the accident if she can establish that the attendant care services are, as a result of the accident, reasonable and necessary.

18The applicant submits that she is entitled to attendant care benefits in the amount of $2,072.78 per month and relies on the strength of Ms. Yaglovski’s, registered nurse, Assessment of Attendant Care Needs (“Form 1”) dated May 6, 2011. The applicant sought permission to submit the Form 1 after the hearing had concluded. The applicant explained that she had tried to get the Form 1 prior to the start of the hearing but that it was in the possession of her previous counsel who would not release the document to her. Given this, I have admitted the Form 1 into the evidentiary record.

19The respondent did not have the applicant assessed by an occupational therapist or registered nurse for the purposes of assessing her attendant care needs. The respondent takes the position that the applicant’s request for an attendant care benefit is not reasonable and necessary under the circumstances of this case.

20The applicant bears the onus of establishing on a balance of probabilities, that she is entitled to the attendant care benefit as claimed. Based on the evidence before me, I find that the applicant has not met her onus.

21Although I have a Form 1 which outlines the applicant’s attendant care needs, I do not have any explanation as to why Ms. Yaglovski recommended this level of care. In addition to this, no clinical notes and records or reports were submitted which would help me understand whether this level of care is reasonable and necessary. The applicant did submit a letter from Dr. Mohammady dated March 8, 2018 who indicated that the applicant was under her care. Dr. Mohammady noted that the applicant was suffering from severe and multiple chronic medical conditions and that her pain prevents her from doing any of her activities of daily living and that she is dependent on others for her personal care. Dr. Mohammady’s letter however, fails to reference the 2010 car accident and provides no comments with respect to the cause of the applicant pain and resulting limitations.

22In addition to this, the evidence before me establishes that the applicant was receiving an attendant care benefit as a result of the August 24, 2008 accident. Dr. Soriano concluded, based on his insurer’s orthopaedic assessment dated March 5, 2009, that the applicant required attendant care services as a result of her severe headaches. The applicant’s current claim for an attendant care benefit is similarly based on her severe headaches. Again, I am not satisfied that these headaches are a result of the 2010 accident. The medical evidence before me fails to establish that that is the case and as a result, I find that the applicant is not entitled to an attendant care benefit as claimed.

23The treatment plan in dispute was completed by Dr. Rod and proposed funding for both psychological and physical treatment in the amount of $14,249.57. The applicant submits that the treatment plan is reasonable and necessary given her accident related injuries and functional limitations

24The respondent denied the applicant’s request for treatment on October 8, 2015 and the applicant filed its application for dispute resolution on September 11, 2018. The respondent takes the position that because the applicant failed to initiate a mediation, arbitration or lawsuit within two years of the denial as mandated in s.281.1 of the Insurance Act³, she is now statute barred from doing so.

25As per the Supreme Court of Canada decision of Smith v. Co-operators General Insurance Co.⁴, a limitation period cannot commence unless the insurer’s denial is in writing and is found to be clear and unequivocal.

26A clear and unequivocal denial must be straightforward and in clear language directed towards an unsophisticated person. The denial must also provide information about the different stages in the dispute resolution process and the relevant time limits that govern the entire process.

27After reviewing the letters dated October 8, 2015 and December 18, 2015 and the corresponding OCF-18 Insurer’s Fax Back, I find that the respondent’s denial was clear and unequivocal and that the requisite information about the different stages in the dispute resolution process and the relevant time limits that govern the entire process were provided.

28The insurer’s letter dated October 8, 2015, clearly indicated that “we do not agree to pay for any of the goods, services and/or assessments described” in the treatment plan and that insurer examinations were required. The applicant’s right to dispute this decision was outlined which included the requisite information about the different stages in the dispute resolution process and the relevant time limits that govern the entire process. The OCF-18 Insurer’s Fax Back, under Part 13 of that form, clearly shows that the “do not approve” box was checked off.

29The insurer that sent a subsequent letter to the applicant on December 18, 2015 following the insurer’s examinations. The letter clearly stated that based on the insurer’s examination “you are not entitled to any of the goods, services and/or assessments described in the Treatment and Assessment Plan (OCF-18) prepared by Dr. Kevin Rod and dated August 25, 2015. Reasons for the denial were provided as follows:

It does not appear that your overall condition has improved with the therapy received to date. At almost five years post-accident, it is questionable if the provision of similar facility based rehabilitative goods and services such as those which have been proposed by Dr. Kevin Rod, will yield any further objective and sustainable therapeutic gains at this juncture. Therefore, our assessor’s opinion is the physical components of the OCF-18 in dispute are not reasonable or necessary. At the present, psychological investigation did not prove to evince any objective evidence of psychological impairment related to the December 3, 2010 accident, there is no evidence before our assessor that the psychological component of the proposed OCF-18 dated August 25, 2015 is reasonable or necessary at this time.

30Having found that the respondent’s denial is clear and unequivocal, I find that the two-year limitation period was triggered on October 8, 2015. Since the applicant failed to initiate a mediation, arbitration or lawsuit within two years of the denial, she is now statute barred from doing so.

AWARD

31The Applicant submits that she is entitled to award under Ontario Regulation 664 because the respondents unreasonably withheld payment of the benefits claimed. Section 10 of Ontario Regulation 664 states that an amount of up to 50 per cent with interest on all amounts owing may be awarded if an insurer has unreasonably withheld or delayed payments. In this case, an award is not warranted as I have found that no benefits are payable.

CONCLUSION

32For the reasons outlined above, I find that:

I. The applicant is not entitled to receive a non-earner benefit in the amount of $185 weekly for the period of June 3, 2011 to date;

II. The applicant is not entitled to receive an attendant care benefit in the amount of $2,072.78 per month for the time period from December 3, 2010 to date; and

III. The applicant is statute barred from proceeding with her claim for medical benefits in the amount of $14,249.57 for psychological services recommended by Healthmax Physio in a treatment plan submitted on August 25, 2015, and denied by the respondent on October 8, 2015?

IV. The applicant is not entitled to an award or interest as I have found that no benefits are payable.

Footnotes

1. 1Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, 111 OR (3d) 321 at para. 39.
2. 2Bobeta and Aviva Canada Inc., FSCO File No. A14-006479 (October 31, 2016) at page 5.
3. 3R.S.O 1990, c. I.8, s. 281.1.
4. 4[2002] 2 SCR 129, 2002 SCC 30.