Citation: A.C.G. vs. Aviva General Insurance, 2020 ONLAT 19-004820/AABS

Released Date: 11/17/2020

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:

A.C.G.

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Kateryna Vlada

Paralegal

For the Respondent:

Maggie Morgan

Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("A.C.G.") is a 26-year-old woman who was involved in an automobile accident on September 15, 2017, when the vehicle she was driving was rear-ended, causing her to collide with a third vehicle in front of her.

2A.C.G. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").¹

3The respondent ("Aviva") denied A.C.G. certain benefits. She disagreed with Aviva's position and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

ISSUES TO BE DECIDED

4I am to decide the following issues:

i. Is the applicant entitled to non-earner benefits in the amount of $185.00 per week from October 13, 2017 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $1,299.14 for physiotherapy treatment recommended by Scarborough Health and Wellness Centre Inc. in a treatment plan (OCF-18) submitted on April 23, 2018 and denied on May 4, 2018?

iii. Is the applicant entitled to a cost of examination in the amount of $2,200.00 for a chronic pain assessment recommended by Dr. Igor Wilderman of Imperial Medical Assessments in a treatment plan submitted on June 26, 20018 and denied on July 4, 2018?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5As a result of the accident, A.C.G. sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. Therefore, she suffers from a complete inability to carry on a normal life and is entitled to receive a NEB in the amount of $185.00 per week from October 13, 2017 to date and ongoing. A.C.G is entitled to interest on the overdue payment of NEBs.

6A.C.G. has not established entitlement to the disputed treatment and assessment plans and Aviva is not liable to pay these benefits.

ANALYSIS

Non-earner benefit

7Section 12(1) of the Schedule sets out the eligibility criteria for a non-earner benefit:

The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person […] 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.

[Emphasis added.]

8Section 3(7)(a) of the Schedule provides that a person suffers "a complete inability to carry on a normal life as a result of the 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.

[Emphasis added.]

9In Heath v. Economical Mutual Insurance Company,² the Ontario Court of Appeal set out the principles that apply to determining entitlement to a NEB. The following Heath principles apply to A.C.G.'s circumstances:

i. An analysis of whether a person suffers a complete inability to carry on a normal life begins with comparing the claimant's activities and life circumstances before the accident to her activities and life circumstances after the accident. In some circumstances, a detailed comparison of pre- and post-accident activities will be unnecessary given the nature of the claimant's post-accident condition;

ii. A decision-maker must assess the claimant's activities over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

iii. In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life;

iv. A claimant must establish that the changes in her life amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted";

v. The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.³

10For the reasons below, I find that A.C.G. sustained an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. She suffers a complete inability to carry on a normal life as a result of the accident.

A.C.G.'s pre-accident activities and circumstances

11A.C.G. graduated from high school and in 2011, began working full-time as a hairdresser's assistant. She remained in that job for five years. For approximately one year prior to the accident, she worked part-time from home, weaving hair for two to three friends and referrals each week.⁴ Over this period, A.C.G. had three children. The father of her two oldest children has since been deported. In February 2017, the father of A.C.G.'s youngest child assaulted A.C.G. and was incarcerated. Following his release, he was under a restraining order and A.C.G. had no contact with him. A.C.G. receives income assistance through Ontario Works and does not receive child support from either former partner. Aside from her large family, which she visited regularly on weekends, and her roommate, A.C.G. had few other social supports.

12A.C.G. has a longstanding history of major mental health challenges. She suffers from pre-existing depression and anxiety with occasional suicidal ideation. After the February 2017 assault, in which she sustained a head injury and required emergency medical treatment, A.C.G.'s family physician, Dr. David Eisen, encouraged her to seek counselling. She did so, and by the summer before the accident, she was physically and emotionally stable.⁵ She enrolled in a competitive post-secondary program to pursue accreditation as a hairdresser. Two weeks before the accident, she began attending classes. Again, A.C.G.'s health was stable. Her self-esteem was good.

13A.C.G.'s oldest child has global developmental delay and a seizure disorder. She requires assistance with feeding, dressing and bathing. Finding appropriate care for this child is difficult, but prior to the accident, A.C.G. had secured suitable placements for all three of her children in a subsidized daycare program.

A.C.G.'s post-accident activities and circumstances

14By A.C.G.'s own account, the September 15, 2017 accident was minor.⁶ A.C.G. was rear-ended as she prepared to make a right turn at a major intersection. The force of the initial collision pushed A.C.G.'s vehicle forward and it collided with the vehicle in front of her. Air bags did not deploy, and she did not lose consciousness. She exited her vehicle independently. Although it was irreparably damaged, A.C.G. was able to drive her vehicle from the scene.

15A.C.G.'s accident-related physical injuries consisted of whiplash and soft tissue sprain and strain injuries.⁷ These injuries resulted in persistent musculoskeletal pain and chronic headaches. Shortly after the accident, A.C.G. began attending the Scarborough Wellness Centre for physical rehabilitation, which gave her temporary relief from pain.

16The accident had damaging effects on A.C.G.'s psychological condition. A.C.G.'s accident-related pain prevented her from meeting the demands of her hairdressing program and she withdrew from it shortly after the accident. As a result of being unable to attend school, A.C.G. lost her childcare subsidy, leaving her to care for all three of her children on her own at home.⁸

17In the months after the accident, A.C.G.'s functioning deteriorated significantly. A.C.G. visited her family physician on December 15, 2017, three months after the accident. By that time, she was presenting with difficulty in carrying out basic daily functions. A.C.G.'s sleep patterns became distorted; she was sleeping less at night and more during the day, leaving her fatigued and irritable. She struggled with low motivation and decreased interest in activities she previously enjoyed. She reported feelings of guilt due to her inability to attend school or work. She denied any inclination to act on suicidal ideation or thoughts of self-harm because of her responsibility to care for her children.⁹

18On January 4, 2018, Dr. Eisen's Physician's Assistant, Ms. Patricia Lee, documented A.C.G.'s struggles with being unable to return to school, lacking social support, and being unable to clean her house. A.C.G. is quoted as saying, "everything is falling apart".¹⁰

19The medical evidence indicates that A.C.G.'s impairment endured well into 2019, when the record before me ends. At no point during that time was A.C.G. able to return to school or work. She struggled on a persistent basis to meet her own needs and the needs of her children due to severe anxiety and depression. Her impairment was unremitting.

20I find, on a balance of probabilities, that as a result of the accident, A.C.G. was continuously prevented from engaging in substantially all of her pre-accident activities. In reaching this conclusion, in line with Heath I have assigned greater weight to the activities she has identified as being important to her pre-accident life. The evidence before me supports a finding that A.C.G. placed the greatest importance on the care of her children and her vocational activities.

21Heath makes it clear that a claimant who merely "goes through the motions" cannot be said to be "engaging in" an activity. Aviva submits that A.C.G. cannot be said to be suffering from uninterrupted disability or incapacity because she was managing on her own to care for three children, including one with global developmental delay who required constant, around-the-clock care. In my view, the factual record shows a young woman "going through the motions" of caring for her children and herself in the face of incapacitating mental illness and persistent physical limitations. A.C.G. was struggling to provide care for herself and her dependants in the aftermath of an accident that had taken her life significantly off course. It is unclear what other choice she had but to attempt to perform her pre-accident childcare activities despite substantial functional impairment. Considering the manner and quality of her engagement in those activities, I find that the nature, extent and degree of A.C.G.'s disability meets the requisite threshold.

22In determining that A.C.G. is entitled to a NEB, I place considerable weight on the clinical notes and records of Dr. Eisen. Dr. Eisen delivered all three of A.C.G.'s children and, as her treating physician of many years, has direct knowledge her life circumstances before and after the accident. The records from Dr. Eisen's office contain frequent notations of concern over A.C.G.'s inability to cope as a result of the accident:

i. On January 17, 2018, Dr. Eisen documented that A.C.G. was having difficulty tending to her own medical needs and those of her disabled child;

ii. On January 18, 2018, he noted that A.C.G. was missing medical appointments for herself and her child;

iii. On April 25, 2018, Dr. Eisen noted in A.C.G.'s chart: "She cannot live this way with 3 kids constantly pulling on her without something going wrong in this family";

iv. On May 1, 2018, Dr. Eisen sent a letter to children's services requesting childcare supports for A.C.G., stating "[A.C.G.] is a single mom who is trying her best to care for 3 children. She needs child care urgently, as she is unable to work due to the constant needs of her children." Dr. Eisen went on to note that without daycare support for her children, A.C.G. would continue to be unable to access medical and psychological care to treat her accident-related injuries, noting "This need is urgent from my point of view."¹¹

v. In a Health Status Report dated May 15, 2019, Dr. Eisen highlighted the "great difficulties" A.C.G. continued to face both mentally and physically to care for herself and her three children.

23Additionally, the April 28, 2018 psychological evaluation by Dr. Eugene Hewchuk, revealed symptoms of severe depression and anxiety in A.C.G. Dr. Hewchuk attributed A.C.G.'s condition to her pre-existing mental health challenges and the trauma of the accident. A.C.G. reported to Dr. Hewchuk that she was no longer able to engage in physical activity with her children and had difficulty "even giving them a bath".¹² A.C.G. told Dr. Hewchuk that she avoided leaving the house, because she felt safer there. She stopped going on regular weekend visits with her large family. She reported only getting four hours of sleep a night and feeling overwhelmed with household and childcare duties.

24Aviva submits that the clinical notes and records of Dr. Eisen should be treated with caution because some of the entries relate to consultations A.C.G. had with Ms. Patricia Lee over the phone when A.C.G. was unable to attend the clinic in person. Aviva submits that the entry dated December 18, 2017 should be given little weight. On that date, Ms. Lee conducted a standardized Patient Health Questionnaire (PHQ-9) and provisionally diagnosed A.C.G. as "likely" suffering from "adjustment disorder with depressed mood, secondary to trauma from MVA". Aviva questions Ms. Lee's qualification to provide a psychological diagnosis.

25The notes from Dr. Eisen's clinic clearly differentiate his in-person assessments of A.C.G. and his assistant's interviews with her. I need not attenuate the weight of this evidence because at times Dr. Eisen's assistant documented A.C.G.'s subjective reports in her chart for his review. A formal diagnosis of adjustment disorder does not fundamentally alter the analysis of whether A.C.G. suffered a complete inability to carry on a normal life as a result of the accident. The fact that she was unable to routinely attend scheduled medical appointments adds to a finding that her ability to engage in ordinary activities was impaired.

26I consider A.C.G.'s frequent references to her inability to work and her distress at not being able to continue in school to be evidence that A.C.G.'s pre-accident vocational activities were important to her. The accident rendered uncertain A.C.G.'s ability to meet the physical demands of a career in hairdressing, an objective she had been working towards for several years. It is apparent in the reports before me that this was a significant source of mental distress for A.C.G.

27Viewed qualitatively, as required by Heath, A.C.G. was continually prevented from engaging in these pre-accident activities. Aviva submits, based on the Section 44 Insurer's Examination (IE) reports of Ms. Vinita Tandon, Occupational Therapist, and Dr. Mark Goldstein, MD, that A.C.G. demonstrated adequate functional abilities to continue engaging in the majority of her pre-accident daily activities. I accept the findings of these assessors as to A.C.G.'s demonstrated functional range of motion, tolerances and capacities. However, considering the evidence as a whole, these physical findings capture only a small part of A.C.G.'s overall functioning. In addition, as A.C.G. submits, the IE assessors who considered A.C.G.'s entitlement to a NEB were only afforded the clinical notes and records of Dr. Eisen up to December 2017. Dr. Eisen's clinical notes and records after December 2017 demonstrate that A.C.G.'s continued to suffer from a disability that prevented her from engaging in her pre-accident activities.

28Based on my review of the evidence, A.C.G.'s accident-related incapacity was fundamentally psychological in nature. This is not a case where pain is a primary factor in preventing the applicant from engaging in her prior activities. While her nagging pain and physical limitations compounded her disability, the evidence shows that A.C.G.'s physical limitations were, objectively speaking, relatively minor. The records of Dr. Eisen show that A.C.G.'s mental health challenges hampered her ability to participate in physical rehabilitation, which may have delayed her recovery from her soft tissue injuries. However objectively minor, A.C.G.'s perceived physical limitations contributed to her anxiety and depressive symptoms. Dr. Godwin Lau, who conducted a Psychological IE on March 15, 2018, found that A.C.G.'s pre-accident vulnerability had rendered her more susceptible to the psychological impact of the accident. I give less weight to Dr. Lau's opinion on the legal question of whether A.C.G. meets the disability test for a NEB than I give his medical opinion that A.C.G.:

i. suffered from severe symptoms of depression and anxiety based on psychometric test scores; and

ii. has chronic adjustment disorder with mixed anxiety and depressed mood as a result of the accident.¹³

29Aviva submits that A.C.G. gave conflicting accounts of her post-accident activities to various assessors, undermining her claim that she suffers a complete inability to carry on a normal life. Aviva directs me to consider A.B. v. Aviva Insurance Company of Canada,¹⁴ a decision in which this Tribunal applied the British Columbia Court of Appeal's 1951 decision in Faryna v. Chorny.¹⁵

30Faryna is a case about the value of demeanour in assessing witness credibility. A.B. focused on the oral testimony of the applicant supporting a claim for a NEB. The principles set out in these decisions are of limited relevance in this case, where the evidentiary record consists not of oral testimony, transcripts or sworn statements, but the written reports and records of various medical experts.

31It is unsurprising to find variation among the secondary reports of medical experts. The authors of these reports spend a short time gathering a detailed history from a subject. In relaying a subject's responses to interview questions, the authors often paraphrase and modify them to fit within a narrative structure. The manner and content of the questions posed are not always apparent from the written record. Aviva highlights variations in the evidence about A.C.G.'s activities which are minor. They give me no reason to doubt A.C.G.'s credibility.

32Aviva argues that A.C.G.'s claim should fail because she has not presented particulars of the time she spent on her various activities before and after the accident. Aviva relies on a decision of this Tribunal,¹⁶ by which I am not bound, where an applicant's claim for a NEB was denied on this basis.

33Nowhere does Heath require that an applicant present quantitative evidence detailing the time spent on pre- and post-accident activities. Heath expressly requires a comparison of activities and circumstances before and after the accident that is qualitative, the parameters of which will depend on the facts of the case. The court goes so far as to observe that in some cases, an applicant's post-accident condition will render a detailed comparison unnecessary.

34Aviva submits that A.C.G. has presented no evidence she is unable to manage her personal care; no evidence of the particulars of her social and recreational activities; and no evidence of her pre- and post-accident caregiving, housekeeping and home maintenance activities. Aviva submits that A.C.G. has returned to the majority of her pre-accident activities despite her reports of pain and limitation.

35These submissions are not reflected in the record before me. Contrary to Aviva's submission, A.C.G. has presented evidence of her reduced ability to manage her personal care; that her pre-accident social and recreational activities (regularly visiting her large family and participating in outdoor recreation with her children) were completely abandoned; that her caregiving abilities were significantly hampered by her anxiety, fatigue, low motivation and increased social isolation; and that tasks around the home took her longer to complete when she was able to manage them at all. In determining whether A.C.G. has been able to continue engaging in "substantially all" of her pre-accident activities, in line with Heath I have assigned greater weight to the activities which were most important to A.C.G.'s pre-accident life, namely caring for her children and pursuing her vocational goals.

The disputed medical benefits

Pursuant to section 15 of the Schedule, Aviva is only liable to pay medical benefits for reasonable and necessary expenses incurred as a result of the accident. A.C.G. has made only cursory submissions on the medical benefits in dispute. Only in reply does she address the reasonableness and necessity of the treatment plans. She submits that physical rehabilitation was consistently reported as being helpful, which ought to suffice in establishing her entitlement. A.C.G. submits that the disputed chronic pain assessment is reasonable and necessary because she was forced her to withdraw from her educational program due to pain. She submits that her injuries should be characterized as chronic pain.

36Aviva submits that the only evidence that A.C.G. presented as to the necessity of the disputed physiotherapy services was Dr. Nalli's notation in the treatment plan itself that A.C.G. "reports that treatments help."¹⁷ The efficacy of previous similar treatment, Aviva submits, is not in evidence.

37Aviva refused the chronic pain assessment based on the opinion of its IE assessor, Dr. Riaz Moolla, a chronic pain physician. Dr. Moolla's findings of uncomplicated soft tissue strain injuries to A.C.G.'s spine are consistent with the other medical evidence before me. Though Dr. Moolla observed A.C.G. as having some residual pain, she concluded that A.C.G. did not meet the criteria for further assessment by a chronic pain specialist.

38In summary, the evidence before does not enable me to conclude that the disputed treatment plans are reasonable and necessary. While there is evidence A.C.G. found physical therapy helpful in providing temporary pain relief, there is no evidence as to her progress in physical therapy, or how well her treatment goals were being met.

39I have found that A.C.G.'s pain from her soft tissue injuries did contribute, in part, to her anxiety and depressive symptoms. However, her complete inability to carry on a normal life is, fundamentally, psychological in nature. In my view, A.C.G.'s pain complaints in themselves do not warrant investigation by a chronic pain specialist. In weighing the evidence on a balance of probabilities, I conclude that the persistent nature of A.C.G.'s pain complaints is attributable to her inability to cope and to actively participate in rehabilitation. I do not find in A.C.G.'s circumstances the complex set of indicators often associated with a diagnosis of chronic pain syndrome that warrants specialized assessment and treatment.

ORDER

40Aviva shall pay A.C.G. a NEB in the amount of $185.00 per week from October 13, 2017 to date and ongoing. A.C.G. is entitled to interest on the overdue payment of NEBs calculated in accordance with the Schedule.

41A.C.G. is not entitled to payment for the treatment plans in dispute.

Footnotes

1. 1Ontario Regulation 34/10.
2. 22009 ONCA 391 ["Heath"].
3. 3Heath at para. 50.
4. 4Respondent's Brief, Tab 14: Section 44 IE Assessment Report by Dr. Riaz Moolla, August 23, 2018.
5. 5Applicant's Brief, Tabs 5 & 6: Clinical notes and records of Dr. Eisen and Ms. Lee (dated December 18, 2017) and Psychological Assessment Report of Dr. E. Hewchuk dated April 28, 2018; Respondent's Brief, Tab 8: Section 44 IE Psychologist Assessment Report by Dr. G. Lau dated April 3, 2018.
6. 6Applicant's Brief, Tab 5: Clinical notes and records of Dr. Eisen and Ms. Lee (dated December 15, 2017).
7. 7Disability Certificate (OCF-3) dated September 20, 2017 by Dr. A. Nalli, as cited in the Section 44 IE Occupational Therapy In-Home Assessment of Ms. V. Tandon, at Tab 6 of the Respondent's Submissions.
8. 8Applicant's Brief, Tab 6: Psychological Assessment Report of Dr. E. Hewchuk dated April 28, 2018.
9. 9Applicant's Brief, Tab 5: Clinical notes and records of Dr. Eisen and Ms. Lee (dated December 15, 2017).
10. 10Applicant's Brief, Tab 5: Clinical notes and records of Dr. Eisen and Ms. Lee (dated January 4, 2018).
11. 11Applicant's Brief, Tab 5: Clinical notes and records of Dr. Eisen and Ms. Lee (dated May 1, 2018).
12. 12Applicant's Brief, Tab 6: Psychological Assessment Report of Dr. E. Hewchuk dated April 28, 2018.
13. 13Respondent's Brief, Tab 8: Section 44 IE Psychologist Assessment Report by Dr. G. Lau dated April 3, 2018.
14. 142016 CanLll 96166 at paras. 41, 42, 49 and 51.
15. 151951 CanLll 252 (BC CA).
16. 16R.S. v. Aviva Insurance Company, 2017 CanLll 46352.
17. 17Respondent's Brief, Tab 11: Treatment and Assessment Plan (OCF-18) dated April 23, 2018.