Z. Amitofski v. Traders General Insurance Company, 2020 CanLII 80319

19-008148/AABS

Released Date: 10/02/2020

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. Amitofski

Applicant

and

Traders General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

Representative for the Applicant:

Jeton Memeti

Counsel for the Respondent:

Amanda Faulkner

Heard by way of written submissions.

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in an automobile accident on October 21, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant applied for a non-earner benefit (“NEB”), and a treatment plan for physiotherapy which were denied by the respondent as the applicant did not have a complete inability to carry on a normal life and the treatment plan was not reasonable and necessary. The applicant disagreed with this decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

3The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of May 14, 2019 to October 1, 2020, which was denied by the respondent on May 2, 2019?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,482.50 for physiotherapy services recommended by Etobicoke Sportmed & Physiotherapy in a treatment plan submitted on April 25, 2019, and denied by the respondent on May 9, 2019?

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

(iv) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4Based on the totality of the evidence before me, I find that the applicant is not entitled to a NEB and that the physiotherapy treatment plan is not reasonable and necessary and, as there are no benefits outstanding, the applicant is not entitled to interest or an award.

ANALYSIS

Does the applicant meet the requirements for a non-earner benefit?

5It is my finding that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life for the following reasons.

6The test for entitlement for a NEB is for the applicant to show that she sustained an impairment as a result of the accident and that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.²

7In Heath,³ the Ontario Court of Appeal outlined the proper approach to apply the test for NEBs. The key principles from Heath are 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, 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 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. 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.

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.

8In order for me to assess the applicant’s claim for NEBs, she must show what her life was like before, and after the accident.

9The applicant relies upon the following to show she has a complete inability to carry on a normal life:

i. Four Disability Certificates (OCF-3) dated October 25, 2018, November 5, 2018, December 12, 2018 and August 10, 2019.⁴

ii. The Tribunal case of 17-006252 v Aviva Canada,⁵ for the proposition that prior to the accident the applicant was enjoying her life but following the accident and her accident related injuries she can no longer engage in everyday activities which she performed prior to the accident.

iii. A Physiatry insurer examination (“IE”) report by Dr. Feigelson that the applicant’s pre-existing and concurrent impairments contribute to the applicant’s current clinical presentation.⁶

iv. A Psychological IE report of Dr. McDowall dated April 18, 2019 where the applicant was diagnosed with a Major Depressive Disorder, Moderate, with Anxious Distress and Dr. McDowall’s notation that the applicant’s depression and anxiety symptoms appear to be related to the physical pain that she described and the negative impact it has had on her social and romantic relationships.⁷

10The onus is on the applicant to prove on a balance of probabilities and I have not been persuaded on that standard.

11The applicant has not provided any submissions and has not directed me to any evidence of the activities the applicant was engaged in pre-accident, compared to what she is engaged in, post-accident. Nor has the applicant provided submissions or directed me to evidence of what activities were most important to her pre-accident that her injuries prevent her from substantially engaging in post-accident.

12Upon review of the OCF-3’s there is a check marked “yes” to the question of whether the applicant has a complete inability to carry on a normal life. With an explanation that “[The applicant] cannot move her neck or back and headaches are increasing in nature. Concussion overlay is suspected.”⁸ However, there is no discussion of her pre- and post-accident activities. The other OCF-3’s submitted also do not provide a description of what the applicant was able to do prior to the accident and what she is unable to do now post-accident as a result of the accident.

13The case law the applicant relies upon, 17-006252, does not assist for the purposes of this case. In 17-006252, the Adjudicator in that hearing had evidence from the applicant on her activities before the accident and what she was restricted or unable to do post-accident.⁹ That level of detail in the applicant’s activities pre- and post-accident has not been provided in the present case. Without such information it is impossible to properly assess whether the applicant has a complete inability to carry on a normal life in accordance with the Heath test.

14I am persuaded by Adjudicator Hines in 16-003010 v Aviva Insurance Canada when she wrote:¹⁰

In order to qualify for a non-earner benefit, it is not sufficient enough for the applicant to demonstrate that she has sustained injuries, that she suffers from physical pain or that her pre-existing injuries have been aggravated. What must be proven is that the injuries and associated pain was directly caused by the [accident] and have significantly interfered with almost all of the applicant’s pre-accident daily activities.

15Despite not being directed to any evidence in support that the applicant’s injuries have significantly interfered with almost all of her pre-accident daily activities, a review of the medical evidence submitted by the applicant also does not satisfy the Heath requirements.

16According to the physiatry IE assessment dated March 21, 2019 by Dr. Feigelson, the applicant reported that she is no longer able to walk on the treadmill twice a day for an hour at a time because “it’s too hard” and because of calf pain and headaches. According to the IE report, walking on the treadmill was important to her and not being able to do so now has resulted in a weight gain of 36 pounds since the accident.

17However, Dr. Feigelson concluded that the applicant did not suffer a complete inability to carry on a normal life as she was able to drive, bathe and dress herself independently with her daughter helping her with wearing socks, she is able to kick the laundry bag down the stairs to the laundry room and fold her laundry and do most housekeeping with the exception of sweeping and vacuuming.

18Dr. Feigelson completed an addendum report dated April 18, 2019 in which her opinion did not change from her first report as the medical records did not establish that the applicant lost consciousness at the time of the accident or that she had two seizures in the emergency room. The paramedic’s report specifically states there was no loss of consciousness and that the applicant “denies hitting her head.” There is no documentation of any seizures in the emergency room physician’s consult report or in the emergency room nursing notes. Her CT scan from the date of loss was also negative for any acute changes. Furthermore, there is nothing in the applicant’s medical file after the date of loss that would explain the or support the applicant’s calf pain.¹¹

19According to the respondent, the large number of issues the applicant is attributing to the subject accident also pre-date the accident as her previous medical history prevented her from living a “normal” life as evidenced by her receipt of the Ontario Support Disability Payments (“ODSP”) for nearly two decades.

20After a review of the physiatry IE report, I do not find it to be in support of the applicant’s claim for an NEB because, other than claiming that walking on the treadmill is an activity that is important to her pre-accident, she states that her headaches and calf injury prevent her from using it post-accident. However, as noted in the addendum report, there is no medical evidence to suggest that her calf injury was as a result of the accident or that she hit her head and suffered a concussion as a result of the accident.

21In the psychological IE report by Dr. McDowall dated April 4, 2019,¹² the applicant reported that after her thyroid cancer surgery in 2017 she was experiencing a better quality of functioning as she was engaging in more social and physical activities such as riding her bike, going on picnics, participating in book clubs, helping her step-daughter with her homework and babysitting her grandchildren.

22However, in the IE report of Dr. McDowall, the applicant notes that since the subject accident in 2018 she has had difficulty doing daily household tasks such as cooking, cleaning, laundry, grocery shopping and driving her step-daughter to school. Dr. McDowall concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident because she reported that she was able to do some light chores around the house, she was able to drive her step-daughter to school some of the time and she is able to engage meaningfully with her friends and family members on some days.¹³

23After a review of the psychological report, I also find that it does not support the applicant’s claim for an NEB as the applicant reported difficulties in her pre-accident activities after the accident. (emphasis mine). However, there must be evidence of a complete inability to do substantially all of the pre-accident activities post-accident. Stating that she has “difficulties” doing her activities post-accident, in my view, is not the same as a complete inability. As a result, I find that the psychological report does not assist in support of NEB’s.

24The respondent’s position is that the applicant has a significant and extensive medical history as she was involved in two motor vehicle accidents in 2000 and 2001 which caused traumatic syringomyelia, causing residual numbness/weakness.¹⁴ Furthermore that the applicant was receiving benefits from ODSP and the submissions made on her behalf in support of the ODSP state that she sustained physical, emotional and psychological injuries including PTSD (post traumatic stress disorder), anxiety, insomnia, nervousness, left shoulder, lower back, mid-back and left foot pain along with headaches and dizziness. She reported that she was unable to care for herself, her children or perform her housekeeping duties.¹⁵

25As a result, the respondent submits that the applicant’s medical problems were present well in advance of the subject accident which were significant enough to warrant ODSP benefits being paid.

26The onus is on the applicant to prove on a balance of probabilities and I find that the applicant has not done so. As a result of the above, I find that the applicant does not suffer a complete inability to carry on a normal life in accordance with the Schedule and the Heath test.

27I will now turn to discuss whether the physiotherapy treatment plan is reasonable and necessary.

Physiotherapy treatment

28The applicant relies upon the OCF-18 in support of the treatment plan by noting what the injuries are,¹⁶ what her limitations are,¹⁷ and what the goals, outcome and barriers to recovery are.¹⁸ The applicant then submits that the treatment plan was denied based on the physiatry report of Dr. Feigelson dated April 18, 2019.

29The onus is on the applicant to adduce compelling evidence in support of the treatment and the treatment plan itself is not compelling evidence on its own.

30There should be contemporaneous evidence from the applicant’s family doctor or treating practitioner(s) in support of the treatment. Contemporaneous evidence should also be adduced in support of whether the goals are reasonable and whether there is any improvement in her function or limitations as well as whether the goals and outcomes are being met to a reasonable degree.

31Without any submissions or evidence in support of the treatment plan, I am unable to conclude that the treatment is reasonable and necessary.

32There are clinical notes and records from Finch Health, Dr. Sai Ping Lee and the Scarborough and Rouge Hospital; however, after a review of those records, I do not find any evidence in support of physiotherapy treatment or whether any facility based treatment is helping to improve her function or limitations.

33As a result of the above, I find that the physiotherapy treatment plan is not reasonable and necessary.

34As there are no benefits owing or outstanding, there is no interest that is payable or an award.

CONCLUSION

35For the reasons outlined above, I find that the applicant is not entitled to an NEB and the physiotherapy treatment plan is not reasonable and necessary and, as there are no benefits outstanding, the applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Section 12(1) of the Schedule
3. 3Heath v Economical Mutual Insurance Company, 2009 ONCA 391. (Heath)
4. 4Written Submissions of the Applicant at Tabs 2-5.
5. 52018 CanLII 110933 (ON LAT). (“17-006252”)
6. 6Written Submissions of the Applicant at Tab 7, pgs 10-13.
7. 7Ibid at Tab 9, pg. 12.
8. 8Ibid at Tab 2. Part 6 of the OCF-3 dated October 25, 2018.
9. 917-006252 at paras. 34-46.
10. 102017 CanLII 46346 (ON LAT) at para 41.
11. 11Written Submissions of the Applicant at Tab 8, pg. 7.
12. 12Ibid at Tab 9.
13. 13Ibid at pgs. 14-15.
14. 14Written Submissions of the Respondent at Tab A. ODSP File dated March 4, 2003 to February 6, 2020.
15. 15Ibid at Tab C. ODSP File dated January 10, 2020.
16. 16Written Submissions of the Applicant at Tab 14, pg 5, part 6.
17. 17Ibid at Tab 14 at pg. 5.
18. 18Ibid at Tab 14, at pg. 6, part 9.