Basma Ibrahim v. Aviva Insurance Company, 2021 CanLII 127461

Citation: Ibrahim. v. Aviva Insurance Company, 2021 ONLAT 20-002477

Licence Appeal Tribunal File Number: 20-002477/AABS

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:

Basma Ibrahim

Applicant

And

Aviva Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Nergiz Sinjari, Counsel

For the Respondent:

Kristofer Angle, Counsel

Heard via Videoconference:

June 14, 15, 16, 17, 18 and August 25, 2021

REASONS FOR DECISION AND ORDER

BACKGROUND

1Basma Ibrahim (“applicant”) was involved in a motor vehicle accident on December 28, 2017 (the “accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Aviva Insurance Company (“respondent”) denied the applicant’s claim for non-earner benefits (“NEB”) and various medical benefits.

3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

RESPONDENT’S MOTION AND APPLICANT’S MOTION

Respondent’s Motion

4On June 13, 2021, the respondent brought a motion for an Order:

a. Quashing the applicant’s summonses to Ashley Broughton, adjuster, and respondent’s assessors Dr. Walters, Shelley Elliott, and Dr. Costa El-Hage;

b. Excluding the applicant’s hearing brief that was served and filed on June 11, 2021

c. In the alternative, excluding tabs 48, 51-60, and all other irrelevant evidence or evidence delivered past the production deadline and in breach of the case conference Order dated August 6, 2020.

d. Excluding the applicant’s further written particulars of the special award claim that was served and filed June 11, 2021.

e. To set a timetable for witness testimony.

f. To obtain a summary of the applicant’s witness’ anticipated testimony.

g. To challenge the qualifications of any expert witness the applicant may call at the hearing except for the IE assessors.

5I heard the respondent’s motion even though it was served without sufficient notice because the motion concerns documents which are also filed late. After hearing lengthy oral submissions from both parties, I ordered that:

a. The respondent’s request to quash the applicant’s summonses to Ashley Broughton, Dr. Walters, Shelley Elliott and Dr. Costa El-Hage is denied. These witnesses appear to have potentially relevant evidence. The adjuster’s log notes have been produced and the reports of the other three witness have been filed, so there is no prejudice to the respondent who knows what their testimony is likely to be. Given that the respondent indicates it may call these witnesses, but has not undertaken to call any of them, the applicant is allowed to call these witnesses for cross-examination if the respondent indicates it is not calling them at the end of the applicant’s evidence.

b. The applicant’s hearing brief filed June 11, 2021, is admitted into evidence on consent of the respondent excluding tabs 51-60. These tabs are excluded because it is prejudicial to the respondent to file new evidence one business day prior to the hearing as it’s assessors have not had an opportunity to review this material. The prejudice to the respondent cannot be cured at this stage in the proceeding other than by exclusion, given that an adjournment of the hearing has been refused by the Tribunal on June 10, 2021 for the reasons set out in the Order made at that time.

c. The respondent’s request to exclude the applicant’s further written particulars of her special award claim is granted. Applicant’s counsel indicated that these particulars can be given orally in closing submissions.

d. As the parties have been unable to agree, I order the schedule for the testimony of witnesses as set out below.

e. The respondent’s request for a summary of anticipated evidence from the applicant’s witnesses Dr. Rick Lindal, psychologist, and Dr. Ashley Narula, chiropractor is denied. The applicant has produced the records of these witnesses and in this particular case, a statement of their anticipated evidence is not essential at this point in the proceeding.

f. The respondent’s request for an order to challenge the qualifications of any expert witness the applicant may call is denied at this stage in the hearing. Any challenges the respondent wishes to make about the qualifications of the applicant’s experts can done in cross-examination.

Timetable for Witness Testimony

6Given that the parties have been unable to agree on names of witnesses, order of witnesses, estimated time for examination in chief, cross examination and re-examination of witnesses, the following timetable is ordered:

Witnesses:

Examination in Chief:

Cross-examination:

Re-examination:

Basma Ibrahim, applicant

1.5 days

1.5 days

2 hours

Dr. Ashley Narula

1.5 hours

1.5 hours

30 minutes

Dr. Rick Lindal

3 hours

3 hours

1 hour

Ashley Broughton (if not called by respondent)

3 hours

30 minutes

Dr. Costa El-Hage (if not called by respondent)

3 hours

30 minutes

Dr. Walters (if not called by respondent)

2 hours

30 minutes

Shelley Elliott (if not called by respondent)

2 hours

30 minutes

Ashley Broughton

3 hours

3 hours

15 minutes

Dr. Costa El-Hage

3 hours

3 hours

15 minutes

Dr. Walters

2 hours

2 hours

15 minutes

Shelley Elliott

2 hours

2 hours

15 minutes

Applicant’s Motion

7On June 15, 2021 the applicant brought a motion for an Order seeking to substitute Linda Chow for Ashley Broughton on the basis that Linda Chow was the adjuster handling the applicant’s claim when the denial for further psychological treatment was made and would have more relevant information than Ashley Broughton on the denial.

8I heard the applicant’s motion June 16, 202, even though it was served without sufficient notice because it concerned witness testimony for the hearing already underway, and the respondent had been given time to consider its position. The respondent opposed the mid-hearing substitution of witnesses as prejudicial and unnecessary.

9After hearing oral submissions from both parties, I denied the applicant’s motion for the following reasons.

10On the first day of the hearing, the applicant asked for and was granted an Order that Ashley Broughton could be called as a witness by the applicant at this hearing for purposes of cross-examination if the respondent was not calling Ashley Broughton as a witness.

11On the second day of the hearing, the applicant asked for an Order that Linda Chow, another adjuster, could be called as a witness by the applicant at this hearing for purposes of cross-examination, instead of Ashley Broughton, to address the applicant’s special award claim, and because applicant’s counsel submits that the respondent has advanced a new theory in cross-examination of the applicant. The new theory is said by applicant’s counsel to be that the applicant refused medical treatment. Applicant’s counsel argues that as a matter of procedural fairness the applicant should be given leave to call Linda Chow instead of Ashley Broughton.

12Respondent’s counsel has now undertaken to call Ashley Broughton as a witness and she is available to testify on June 17, 2021. As a result, the applicant will have an opportunity to cross-examine Ashley Broughton, who is still an employee of the respondent.

13More than 300 days have passed since the date of this hearing was set at the case conference. Applicant’s counsel named Ashley Broughton as a witness as far back as February 18, 2021 in correspondence sent to the Tribunal and the respondent. The respondent produced the adjusters’ log notes to the applicant well before the hearing, and the applicant should have reviewed the log notes well before the hearing in order to determine which of the adjuster it wished to have testify at the hearing. To ask to substitute another adjuster for Ashley Broughton mid-hearing, after Ashley Broughton has been summonsed by the applicant and an Order has been granted scheduling Ashley Broughton’s testimony at the hearing, is both prejudicial to the respondent and unnecessary. The applicant will be able to cross-examine the adjuster witness she summonsed. The denial of psychological treatment is only one of the denials of treatment in issue in this hearing. Ashley Broughton can be cross-examined in respect of the award claim. There is no need for the applicant to cross-examine more than one adjuster as conceded by the applicant.

14Although applicant’s counsel argues that the respondent has raised a new theory during this hearing, specifically that the applicant has refused psychological treatment, based on the evidence already put forward at this hearing during the first two days, this is not a new theory. A medical report already in evidence states that the applicant refused further treatment. There is nothing new about this fact. Both parties have had access to this medical report well prior to this hearing. No new theory has been raised by the respondent.

15Respondent’s counsel advises that Ashley Broughton is expected to have knowledge of the applicant’s file from an adjuster’s point of view. The cases on which the applicant seeks to rely involve requests to call witnesses before the hearing begins, not mid-hearing as is the case here.

16The hearing is in progress. The applicant has put forward no reason why another adjuster should be called instead of Ashley Broughton except that a new theory has been raised, which I have found not to be the case, and that Linda Chow handled the file when one of the types of treatment was denied. These reasons are insufficient to establish prejudice to the applicant sufficient to overcome the prejudice to the respondent.

17There is no unfairness, procedural or otherwise, in holding the applicant to the Order she requested on the first day of the hearing, specifically an Order that she could call Ashley Broughton for cross-examination if the respondent chose not to call her as a witness. The respondent is calling her and at this point in the hearing I am not satisfied that Linda Chow would have any better evidence than Ashley Broughton regarding the issues before me.

ISSUES

18The issues to be decided in this hearing are:

i. Is the applicant entitled to a NEB in the amount of $185.00 per week from October 22, 2018 to date and ongoing?²

ii. Is the applicant entitled to an attendant care benefit in the amount of $1,514.21 per month from May 29, 2018 to date and ongoing?³

iii. Is the applicant entitled to $1,015.38 for other goods and services (acupuncture), recommended by Integral Health Group in a treatment plan (OCF-18) submitted on October 1, 2018?

iv. Is the applicant entitled to $2,370.17 for other goods and services recommended by Integral Health Group in a treatment plan (OCF-18) submitted on September 10, 2018?⁴

v. Is the applicant entitled to $1,937.74 for other goods and services , recommended by Integral Health Group in a treatment plan (OCF-18) submitted on October 10, 2018?⁵

vi. Is the applicant entitled to $2,334.01 for other goods and services (chronic pain assessment) recommended by Integral Health Group in a treatment plan (OCF-18) submitted on October 24, 2018?

vii. Is the applicant entitled to $1,726.33 for other goods and services (physiotherapy and massage) recommended by Integral Health Group in a treatment plan (OCF-18) submitted on December 10, 2018?

viii. Is the applicant entitled to $2,951.38 for other goods and services (psychological services) recommended by Integral Health Group in a treatment plan (OCF-18) submitted on November 15, 2018?

ix. Is the applicant entitled to $2,041.10 for psychological services recommended by Integral Health Group in a treatment plan (OCF-18) submitted on February 14, 2018?⁶

x. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

xii. Is the respondent entitled to costs?⁷

RESULT

19I find that the applicant has not proven her entitlement to an NEB. The applicant is not entitled to any of the disputed treatment plans. No interest is payable. There is no award made. No costs are awarded to the respondent. The application is dismissed.

LAW

Medical and Rehabilitation Benefits

20Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary.⁸

NEB

21Section 12 of the Schedule requires an insurer to pay an NEB to an insured person who does not qualify for an income replacement benefit, and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

22Section 3(7)(a) further provides that a person suffers a “complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

23The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

24The Ontario Court of Appeal⁹ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

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 of time prior to the accident. The duration 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 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 the 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.

ANALYSIS

Is the Applicant Entitled to NEB?

25The applicant submits that she meets the test for an NEB as she suffers from a complete inability to carry on a normal life as a result of the accident.

26The applicant testified about her pre-accident life circumstances. She came to Canada in 2015 from Russia with her three children. In Russia she had completed her Ph.D. in mathematics, and worked as a math teacher and assistant professor.

27The applicant testified that her pre-accident health was good except for low back pain and other issues related to her reproductive health and some dizziness which she said was treated with pills, went away and did not affect her life. She said she didn’t have back pain pre-accident and no psychological or emotional problems except that she was sad because she was away from her husband. The applicant testified that she spoke to her family doctor, Dr. Sulaiman, about this in 2016 and was referred to another physician. The other physician, whose name she does not know, told her the feelings were normal and she would be fine. This other physician did not give her any medication. The applicant testified that these feelings did not affect her daily life and all was good after her husband came to Canada.

28The applicant testified that pre-accident she did all housework including washing dishes, cleaning, mopping, vacuuming, took care of her children by making breakfast, lunches, taking them to the bus stop, drove herself to school for classes starting at 9 a.m., came back home about 2 p.m. and prepared dinner, picked them up from the bus station, did homework with them, went grocery shopping. The applicant also testified that she took the children to activities such as skating, gymnastics, swimming, basketball, to visit their friends, had their friends over, take them for ice cream, took care of her daughters hair. On weekends, the applicant testified that she would take her children to Russian school, to visit other family, to a theme park, cleaned their clothes, prepared food for them and got them ready for school. The applicant was not working outside the home at the time of the accident.

29The applicant testified that post-accident, she could not take her children anywhere because she could not drive and did not feel comfortable so she relied on Uber. The applicant testified that “everything has stopped”. The applicant testified that her sister, friends and neighbours took care of her until her husband came in January 2018.

30Post-accident the applicant testified that her husband is responsible for “everything”. The applicant drives only if necessary. Her oldest child has a driving licence and takes her to the doctor and does shopping. She testified that she has no motivation to do anything such as taking care of her appearance, using makeup and visiting friends. The applicant testified that she can’t lift her arms when showering or dressing and now showers only once or twice a week instead of each day. She asks her children to vacuum the house, feels her house is messy now and worries about her future. The applicant said because her injuries from the accident affected her left hand, she cannot “do anything” because she is left handed. She did later say she uses a mixer sometimes when cooking.

31Post-accident the applicant said the psychological injuries she suffered in the accident affect her a lot. She doesn’t socialize any more, worries about the future, always feels sad and discouraged, worthless, not a good mother and wife and makes her feel like she can’t do anything. Her relationship with her children has changed because she cannot sit with them, do homework with them, cannot take them places even on the weekends and she prefers to stay at home. With her husband she is nervous and not in a good mood.

32The applicant relies on her various medical records and reports in support of her submission that she sustained serious and permanent injuries including her left shoulder, arm, leg, back, neck and rotator cuff tear to her left shoulder as well as psychological injuries including depression, anxiety, headache, emotional shock and stress and sleep disorders and has been diagnosed with chronic pain, post-traumatic stress disorder, somatic symptom disorder with predominant pain, anxiety and depression. The applicant submits that all of these injuries have resulted in her being completely prevented from carrying on pre-accident activities and lacking motivation to do so.

33Applying the above principles and based on the totality of the evidence, I find that the applicant is not entitled to an NEB non-earner benefit for the period in dispute because she does not suffer from a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The reasons are as follows.

Alleged Physical Injuries

34The applicant admitted in her testimony that she still drives, although less so than before the accident, can attend to her personal hygiene and dress herself, although slower and with difficulty, and that she sometimes can cook. Although the applicant complains of chronic pain to her physicians post-accident, the weight of the evidence before me establishes that the degree of pain she has does not continuously prevent her from engaging in substantially all of her pre-accident activities. Even if it did, there is insufficient evidence before me to establish that her pain is causally connected to the accident. The applicant’s statement that she is partially able to undertake her pre-accident activities, even if some help is required for some of them, taken together with the self-reporting that the applicant gave to her assessors, does not establish that she suffers an impairment as a result of the accident that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

35In April 2017, Dr. Sulaiman records that the applicant has pain in the back, left elbow, knees but that imaging results are normal.

36On December 29, 2017, the applicant was seen at Dr. Sulaiman’s office at which time neck and back sprain were diagnosed arising from the accident. In January 2018 the applicant reported “constant” pain, and stress with thinking about the accident, irritable, low mood, fear of driving, and bad dreams. On March 16, 2018, Dr. Khodabandehloo met with the applicant and advised her ultrasound showed tendinitis in the applicant’s left shoulder. Dr. Khodabandehloo does not attribute this to the accident. A July 29, 2018 MRI of the applicant’s left shoulder revealed a low grade partial thickness bursal surface supraspinatus tear. There is insufficient evidence before me that this partial tear is causally connected to the accident.

37On September 22, 2018 Dr. Sulaiman recorded that the applicant is still having left shoulder pain “with exertion” and notes “pain increased by lifting weights…” Although Dr. Sulaiman referred the applicant to an orthopaedic physician the applicant did not point to any medical evidence arising from this referral which supports her application for NEB. By November 3, 2018, the applicant complained of pain from varicose veins and reported “fullness and swelling increased by prolonged standing at the end of the day…” Although the applicant continues to complain of “chronic pain since her MVA” as noted on January 2, 2019, there is little objective evidence of any basis for this subjective pain complaint.

38Although Dr. Walters, the respondent’s general practitioner assessor, testified that the applicant told him she was independent in her personal care and getting some support with cooking and cleaning from her husband, the applicant denied she told Dr. Walters this in her testimony and accused Dr. Walters of “copying and pasting” his report. Given that Dr. Walters included this in his written report, and that he is an experienced physician trained and experienced in recording self-reporting of individuals he is assessing, I prefer the evidence of Dr. Walters over that of the applicant and find that the applicant was able to do these tasks.

39I prefer the evidence of Dr. Walters and accept his opinions, even though he may not have had access to Dr. Sulaiman’s records, because of his experience and the thoroughness of his assessment, the fact that Dr. Walters examined the applicant less than six months post-accident, and reviewed the applicant’s medical situation and produced a series of some seven reports between 2018 and 2020. I accept his opinion that the applicant is not disabled to the extent required to be eligible for NEB. Further, Dr. Walters evidence is consistent with that of respondent’s occupational therapist Ms. Elliott who assessed the applicant in her home in July 2018 and reported that the applicant presented with sufficient strength, range of motion, functional mobility and activity tolerance to continue with her usual pre-accident routine activities of daily living independently.

40The applicant testified that starting in January 2018, she has been able to attend two different college courses post-accident, the most recent one being database administration. Although the applicant said she missed a lot of school and attended classes for only part of the day, no corroborative evidence was produced by the applicant to establish these facts from the college files, any of her teachers or classmates. As a result, I find that the applicant was able to further her education in Canada as she had pre-accident.

41Although Dr. Narula, the applicant’s chiropractor, indicates in the January 10, 2018 OCF-3, disability certificate, that the applicant suffers a complete inability to carry on a normal life, the only explanation given is “due to multiple injury sites, applicant cannot perform certain activities of daily living (e.g. self-care that involves bending, overhead activities, and twisting) without aggravating injuries”. Further, Dr. Narula indicates that the anticipated duration of the disability is “9-12 weeks”. Given the lack of detail and explanation in this disability certificate and given that Dr. Narula anticipates the disability to be temporary, this disability certificate is given little weight and I find it does not establish that the applicant suffers a complete inability to carry on a normal life.

42Further, Dr. Narula notes in Part 8 of the disability certificate that the applicant has a previous history of left knee pain and “cortisone injection every year on left elbow (last injection in 2014)”.

43Although the applicant has made some complaints of pain to her physicians, I find there is no significant evidence that pain is practically preventing the applicant from engaging in her pre-accident activities as discussed above.

44The applicant’s diagnostic imaging shows either degenerative conditions or minor injuries. No fractures were sustained as a result of the accident.

Alleged Psychological Injuries

45I find that the applicant’s alleged psychological impairments resulting from the accident do not continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

46The applicant’s testimony about her pre-accident psychological health is not credible, because it is not supported by her medical records. The same can be said of some of the statements the applicant made to her family physician which adversely affect the applicant’s credibility. For example, the applicant testified that her husband did not join her in Canada until January 2018 because of his business in Russia. She testified that she was in bad shape and he had to come and help her. On January 17, 2016 the applicant’s family physician, Dr. Sulaiman, recorded that the applicant reported she “lives with husband and kids”.

47Pre-accident the applicant had been diagnosed with depression in 2016. Pre-accident Dr. Sulaiman referred the applicant to Dr. Hany Ibrahim Shafey, psychiatrist, to whom the applicant self-reported issues in her relationship with her children and her husband, “nothing brings pleasure to her anymore”, social isolation and negative thinking. In his August 24, 2016 report to Dr. Sulaiman, Dr. Hany Ibrahim Shafey diagnosed the applicant with clinical depression, prescribed Cipralex, gave her a one month supply of Cipralex and prescribed sleep medication. The applicant’s psychological complaints continued pre-accident in 2017. Dr. Sulaiman records in April 2017 that the applicant has a history of depression and anxiety, has seen the psychiatrist in the past and wants to be referred to him again.

48Post-accident, in her self-reporting to the respondent’s psychologist Dr. Costa El-Hage about her pre-accident psychological health, the applicant appears to be attempting to minimize her pre-accident depression. In October 2018, the applicant told the respondent’s psychologist, Dr. Costa El-Hage, that she experienced a period of “low moods” following her immigration to Canada which she attributed to adjustment difficulties as her husband was not with the family and reported that the issue “resolved itself” in January 2018, after her husband joined the family in Canada. Dr. Costa El-Hage specifically noted that the applicant appears to have received psychiatric care following her immigration to Canada “…which she did not disclose to this assessor.”

49In the end, Dr. Costa El-Hage opined that, from a psychological perspective, the applicant’s psychological functioning does not play a significant role in her reported functional limitations and that she does not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Costa El-Hage also opined that from a purely psychological perspective, the applicant is capable of performing all pre-accident activities of normal living and that she should be encouraged to continue to engage in all activities for which she is physically capable as a return to a sense of normalcy and stability will likely have a positive impact on her psychological functioning. I accept the opinion of Dr. Costa El-Hage in her October 17, 2018 report which is the psychological evidence before me that is the best, most comprehensive and closest in time to the accident, and which specifically addresses whether the applicant meets the disability test for NEB from a psychological perspective. Dr. Costa El-Hage’s evidence was not challenged by applicant’s counsel in cross-examination even though the hearing was adjourned to allow this to take place.

50There was no corroborating evidence of the applicant’s self-reported physical or psychological injuries resulting from the accident from the applicant’s sister, friends, neighbours, husband or any family members, all of whom the applicant said had to help and care for her post-accident. Given this lack of corroborating evidence, and the limitations described in her medical records, I find it unlikely that the applicant is unable to perform all of the pre-accident activities she described in her testimony.

51Dr. Gladshteyn, applicant’s psychologist, signed a psychological report dated March 21, 2018, which notes that the assessment was conducted by Mila Popova, psychometrist. This report concludes that the applicant suffers from adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type (driving-and passenger-related) as a result of the accident and recommends 12 sessions of cognitively oriented psychotherapy and therapeutic CDs and driving reintegration assessment to determine whether or not she requires treatment for her comfort and confidence as a driver and passenger. However, this report is premised on the information that the applicant “…has not experienced any previous mental or emotional health problems…Ms. Ibrahim’s mental health prior to the accident had also been good…” which is clearly inaccurate given Dr. Shafey’s 2016 diagnosis of clinical depression and Dr. Sulaiman’s records that the applicant’s psychological complaints continued pre-accident in 2017. Further, no opinion is expressed on entitlement to NEB. I give this report no weight.

52The disputed treatment plans and, without listing them all, the balance of the records put forward by the applicant, contain no significant information about the applicant’s pre-accident activities and therefore, are not relevant to the NEB analysis.

53The applicant has put forward no significant evidence that she is prevented from carrying on a normal life as a result of any psychological injuries from the accident. During the two year period when eligibility for NEB is relevant, Dr. Costa El-Hage’s opinion has been that from a psychological perspective the claimant does not suffer a complete inability to carry on a normal life as a direct result of the accident. I accept Dr. Costa El-Hage’s opinion.

54Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish that she suffers from a complete inability to carry on a normal life as a result of the accident and as a result is not entitled to NEB for the period claimed. The loss of the ability to help her children with their homework and to complete some of her pre-accident household tasks, even if this been established by the evidence, which I find it has not been, does not constitute a complete inability to carry on a normal life because this would, at its highest, constitute only a partial inability to carry on a normal life.

Duration of NEB benefits raised by applicant

55Applicant’s counsel submitted that the applicant is entitled NEB for 104 weeks post accident and for “as long as she needs it”. Applicant’s counsel conceded there is no case law to support this submission.

56The respondent submitted that, even if the I find the applicant is entitled to NEB, s. 12(3) of the Schedule is clear that the respondent would not be required to pay NEB for more than 104 weeks post accident.

57I find there is no basis in law for the applicant’s claim for NEB after 104 weeks post accident. Section 12(3)(c) of the Schedule is clear that the insurer is not required to pay a NEB for more than 104 weeks after the accident even if entitlement is established, which I have found has not been established here.

Disputed Treatment Plans Recommended by Integral Health Group:

a. $1,015.38 for acupuncture submitted on October 1, 2018

b. $2,334.01 for chronic pain assessment submitted on October 24, 2018

c. $1,726.33 for physiotherapy and massage submitted on December 10, 2018

d. $2,951.38 for psychological services submitted on November 15, 2018

58The applicant submits that all of these disputed treatment plans are reasonable and necessary to deal with her pain and injuries sustained in the accident.

59The respondent’s position is the opposite.

60Having considered the goals, progress made and cost of each of the disputed treatment plans and the medical evidence before me, I find that the applicant is not entitled to payment of the disputed treatment plans because she has failed to prove on a balance of probabilities with sufficiently persuasive medical evidence that they are reasonable and necessary to treat the applicant’s accident-related injuries.

61With respect to $1,015.38 for acupuncture, although the applicant says that this treatment helps her the most, her neurologist agreed with Dr. Walters that a test was required. The test came back negative. Based on the opinions of these physicians, I find this treatment plan not to be reasonable and necessary in these circumstances.

62With respect to $2,334.01 for a chronic pain assessment, the applicant was referred by an OHIP funded physician to an OHIP funded pain clinic and received treatment. Given this, I find this treatment plan not to be reasonable and necessary in these circumstances.

63With respect to $1,726.33 for physiotherapy and massage, the applicant indicated she prefers acupuncture to these modalities. This is consistent with Dr. Sulaiman’s record from September 2018, that the applicant self-reported that physiotherapy is not helping her. In these circumstances, I find this treatment plan not to be reasonable and necessary.

64With respect to $2,951.38 for psychological services, although Dr. Costa El-Hage in her October 2020, report diagnoses the applicant with somatic symptom disorder with predominant pain, she opines that this treatment plan is not reasonable and necessary because the requested treatment is for adjustment disorder and specific phobia. Dr. Costa El-Hage opines primarily that the applicant does not present with a specific phobia and does not require intervention for this. Dr. Costa El-Hage also notes that the proposed psychological intervention “…does not meet the definition of the Controlled Act of Psychotherapy”. Further, Dr. Costa El-Hage notes that when the applicant was last assessed, she had completed a course of psychological intervention and said she was not interested in further treatment and since that time, has not received any additional psychological intervention. I accept the opinion of Dr. Costa El-Hage that the $2,951.38 treatment plan is not reasonable and necessary for the reasons she has given. I find this treatment plan not to be reasonable and necessary.

65Lastly, there is no proof that any of these treatment plans were incurred and no grounds established that they should be deemed incurred under s. 3 of the Schedule.

Award

66Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. Here, there was no payment unreasonably withheld or delayed. The respondent was entitled to deny the NEB and disputed treatment plans for the reasons it expressed which are not unreasonable given the information it had at the time.

67The applicant submits that one of the main objectives of insurance law, particularly automobile insurance is consumer protection. This proposition, at least with regard to a first party insurer, is not in dispute. However, this proposition, does not relieve the applicant of the obligation to establish entitlement to benefits claimed with evidence on a balance of probabilities. I also find that, based on the evidence before me, there has been no breach by the respondent of any duty to act in good faith nor has there been any unfair or deceptive dealings toward the applicant as argued by the applicant. I find that the respondent has not unreasonably withheld or delayed payments to the applicant.

68For these reasons, no award is made.

Interest

69As there are no benefits payable, no interest is payable.

Respondent’s Request for Costs

70The respondent requests costs because of what it regards as the applicant’s unreasonable conduct of this proceeding in refusing to produce documents, delaying the hearing and generally failing to be cooperative in the expeditious handing of the application and the hearing.

71I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. No costs are awarded to the respondent.

ORDER

72For the reasons outlined above, I find that the applicant has not proven her entitlement to an NEB. The applicant is not entitled to any of the disputed treatment plans. No interest is payable. There is no award made. No costs are awarded to the respondent. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2The applicant requested NEB in submissions from the date of the accident, December 28, 2017.
3. 3This issue was withdrawn by the applicant at the hearing.
4. 4This issue was withdrawn by the applicant at the hearing.
5. 5This issue was withdrawn by the applicant at the hearing.
6. 6This issue was withdrawn by the applicant at the hearing.
7. 7This issue was added by the Tribunal’s June 10, 2021 Order.
8. 8Scarlett v. Belair, 2015 ONSC 3635 (Div. Crt.) at para 24.
9. 9Heath v. Economical Mutual Insurance, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.