Citation: Siomos vs. Dominion of Canada General Insurance Company (Travelers), 2021 ONLAT 19-011720/AABS

Release date: 08/11/2021

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:

Vasilios Siomos

Applicant

and

Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

Vasilios Siomos, Applicant

Gus Triantafillopoulos, Counsel Shannon Kelley, Counsel

For the Respondent:

Doris Joseph, Adjuster

Sarah Scott, Counsel Deanna Miller, Counsel

Interpreter

Stefanos Kourkoulakos, (Greek)

Court Reporter:

Emily Sauve

HEARD by Videoconference:

January 12, 2021

OVERVIEW

1The applicant (“VS”) was involved in an automobile accident on March 4, 2016, when he was 76 years of age. VS requested non-earner benefits (“NEBs”), payment for an orthopedic assessment, payment for a psychological assessment, interest on any outstanding amounts, and an award as outlined in section 10 of Regulation 664 pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The respondent denied VS’ requests for benefits. VS disagreed with this decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to resolve the dispute.

3For the reasons that follow, I find that VS is not entitled to the benefits sought in this instance. Therefore, he is also not entitled to interest or an award which is calculated as a percentage of the benefits to which an applicant is entitled.

PRELIMINARY ISSUES

4The respondent requested the presence of an observer at the beginning of the hearing. The applicant objected to the observer’s attendance. As an observer was not necessary to the presentation of the respondent’s case and as this was a videoconference format that included several participants such that an additional participant might strain the online platform in any event, I excluded the observer.

ISSUES

5The parties agreed the issues in dispute were as follows:

a. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period March 4, 2016 to date and ongoing?

b. Is the applicant entitled to the cost of a psychological assessment in the amount of $2,600.00 recommended by Dalton Practice Management Ltd., submitted June 12, 2020 and denied August 5, 2020?

c. Is the applicant entitled to the cost of an orthopaedic assessment in the amount of $2,486.00 recommended by Synoptic Medical Assessments, submitted October 8, 2020 and denied October 19, 2020?

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

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

f. Is the applicant precluded from claiming a non-earner benefit as he failed to submit a completed Disability Certificate (OCF-3) pursuant to s. 36(3) of the Schedule?

ANALYSIS

Non-Earner Benefits (NEBs)

6To qualify for NEBs, VS must establish that he suffers a complete inability to carry on a normal life because of the accident.¹ A person has a complete inability to carry on a normal life as a result of an accident if they sustain an impairment that continuous prevents them from engaging in substantially all the activities in which they ordinarily engaged before the accident.² I find on a balance of probabilities that VS is not entitled to NEBs because VS did not suffer a complete inability to carry on a normal life as a result of this accident.

7VS argued that he does suffer a complete inability to carry on a normal life on the basis that his impairments suffered as a result of the accident resulted in his inability to manage pre-accident activities of daily living including largely his self-care, his emotional well-being, his gardening and leisure activities, and his social pursuits. However, I find that the evidence, and in particular the evidence of VS and his family physician, does not support this position.

8It would be inaccurate to suggest that no medical evidence is in keeping with the notion that VS is completely incapable of carrying on a normal life. VS was evaluated by an occupational therapist, Zoey Wong, who is very supportive of his position. I did not consider Ms. Wong’s evidence persuasive for three reasons.

9First, Ms. Wong was not able to evaluate the applicant directly as a result of COVID-19 restrictions and thus had a limited ability to observe and evaluate his function. This is by no means determinative as much medical evidence in the current climate is limited in this fashion, but the distinction is important in this instance in that Ms. Wong’s evidence differs from the longstanding family physician’s opinion (Dr. Palcu) who has seen and treated the applicant in-person for more than 10 years.

10Second, as noted above, Ms. Wong’s evidence differs from Dr. Palcu, and from the testimony provided by VS in this hearing. VS testified that Dr. Palcu understands him well and is quite familiar with his level of impairment and overall condition. Therefore, I preferred the evidence of Dr. Palcu and this is simply not reconcilable with Ms. Wong’s view. I found the evidence provided by VS most compelling in this instance as he is in the best position to describe his function both before and after the accident, and his testimony did not demonstrate significant differences in his levels of activity.

11Third, although she reviewed a previous OT report, and the OCF-3, Ms. Wong did not have the ability to assess VS before the accident and a comparison of ability before and after the accident is necessary in determining eligibility for NEBs. Again, Dr. Palcu did have the ability to evaluate VS before and after the accident and was both knowledgeable regarding the VS’ health status and trusted by VS according to his own testimony.

12VS confirmed he was comfortable speaking with his family physician and would have informed him even of sensitive information like emotional health issues or distress. However, there is no reference to the same in Dr. Palcu’s clinical notes and records.

13The notes and records provided also show a history of various aches, pains and investigations on VS’ knees as well as right shoulder surgery for an acute injury unrelated to this accident. The respondent submits that some of the applicant’s pain and limitation predated this accident and would be present regardless of the accident. This is plain from the content of the medical reports but does not suggest the accident played no role.

14In addition to the evidence of Ms. Wong, an OCF-3 was submitted which was generally supportive of the applicant’s position. There is no dispute this document is supportive of the applicant’s position. In fact, the respondent’s adjuster confirmed in her testimony that the OCF-3 supports the assertion that the applicant is completely unable to carry on a normal life.

15While VS argued that this showed the respondent considered the medical evidence supportive on a broad level, the respondent submitted that some aspects of the medical evidence supported the claim for NEBs, but that the balance did not. I agree with the respondent – the medical evidence is not entirely one-sided or consistent.

16VS also testified that ongoing physiotherapy with Joint Venture, was discontinued on their recommendation because they informed him he could do any necessary physical therapy on his own and at his home. Though Dr. Palcu suggested he may wish to return to physiotherapy treatment, VS testified that this only ever helped “a little” and that he did not “feel much different” regardless of the treatment.

17As alluded to above, the testimony that VS provided in this hearing simply did not suggest that he experienced a complete inability to carry on a normal life as a result of this accident. VS was somewhat limited before the accident, largely as a result of age and some ongoing pain-related issues. He noted, however, that he was subjectively much more active. For example, he described doing more gardening, an important hobby in his life. With respect to the specifics of this hobby, he described doing some light weeding and planting, but acknowledged that the heavier tasks were completed, even before the accident, by his son who is younger and stronger.

18After the accident, VS continues to engage in gardening activity. However, his activity level or direct participation is diminished somewhat. He is able to plan the garden but struggles with tasks like weeding or planting. He relies more heavily on his children to do physical tasks. Again, this had begun before the accident and significant digging or heavy work was already performed by his children. VS’ son, TS, confirmed that he does less gardening, but that he will direct work in the garden and water as necessary. Thus, while I appreciate there was some change, the change was not total and did not keep VS from engaging in gardening.

19Similarly, VS described his activity before the accident as including going for coffee with friends and being solely responsible for driving when he and his spouse would go out. He continues to do so, although less frequently. His evidence on the change in frequency was somewhat vague, but it was plain that he continues to attend social gatherings with friends and family regularly and continues to drive his spouse when they go out.

20Before the accident, VS recalled using a cane to ambulate sometimes. After the accident, he has used the cane more regularly and certainly when he is ambulating significant distances. Although he feels diminished in his ability to do tasks such as driving long periods, he acknowledged that he was able to travel internationally for a period of approximately one month after the accident despite his limitations including a lengthy flight and various other drives and excursions. No single factor in his description of activity was determinative in my view, but the broad description provided simply does not correspond to a complete inability to carry on a normal life.

21VS felt he contributed to the household more before the accident by “helping” his spouse. He continues to participate in shopping and light activity in the home. TS confirmed much of VS’ testimony noting that he worries for his father and helps much more frequently than in the past. However, TS acknowledged he could not say with certainty what caused any decline experienced by VS or when this might have happened over the course of several years – that is, it was not clear that his increased reliance was attributable to the accident as opposed to his pre-existing conditions or simply the passage of time.

22Having reviewed the medical evidence provided both before and after the accident, I agree with the respondent that the balance shows very little difference. The applicant was somewhat limited in his activity level before the accident and remains somewhat limited after.

23In light of the foregoing, I find that the evidence submitted by the applicant is insufficient to demonstrate he has suffered a complete inability to carry on a normal life as a result of the accident. This is not in keeping with his own account of his abilities and function.

24Given that he is not entitled to NEBs, I find that a consideration of s.36(3) of the Schedule is not necessary. Any delay in filing does not impact his entitlement in any event.

Psychological Assessment

25Dr. Palcu is the medical practitioner most trusted by and familiar with the applicant. Dr. Palcu does not reference a psychiatric or mental-health related diagnosis, or complaints suggesting the presence of the same in the clinical notes and records before the Tribunal.

26There is no indication that VS was treated, with medication or in any other way, for any psychological disorder and no referral for any type of counseling or available treatment was made by Dr. Palcu. This is not in keeping with the presence of significant psychological symptoms or the necessity of the assessment requested. It is very difficult to reconcile VS’ description of an open and knowledgeable relationship with his physician with Dr Palcu’s silence in this area.

27While TS indicated he provides emotional support to his father, who is more irritable after the accident, this does not amount to a diagnosis and does not overcome the lack of medical reporting on the subject. The applicant directed me to various notes made by Joint Venture regarding his frustration and irritability, as well as Ms. Wong’s commentary regarding the same. However, these individuals are not qualified to comment on psychiatric health or make relevant referrals and in my view do not outweigh the abject lack of information on this point from his trusted physician. I do not intend to suggest he is not frustrated or upset by his situation, but this agitation in isolation does not warrant a psychological assessment.

28Therefore, on a balance of probabilities I find that the psychological assessment requested is not reasonable and necessary.

Orthopedic Assessment

29The respondent argues that the applicant is not entitled to payment of this assessment because the benefit is available through a collateral provider, specifically OHIP. Section 25(1)3 of the Schedule states that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including an assessment necessary for that purpose. However, section 268 of the Insurance Act and section 47(2) of the Schedule require an individual injured in a motor vehicle accident to first seek coverage through any available collateral benefits provider before relying on the benefits described in the Schedule, which includes OHIP.³

30The insurer must demonstrate that the collateral benefits are “reasonably available” to the insured from a collateral provider. If this is done, the burden shifts to the insured to prove the benefit was not reasonably available.

31The respondent demonstrated that the applicant was referred to an orthopedic surgeon by his family physician. The evidence illustrates that when he complained of right shoulder impairment, Dr. Palcu referred him to an orthopedic surgeon, who evaluated him, recommended, and performed surgery. The applicant continues to be followed by the orthopedic surgeon as necessary.

32Dr. Palcu’s referral of VS to an orthopedic surgeon after the date of the accident demonstrates that such a referral was reasonably available to him. VS argued that the quality or comprehensiveness of the assessment is significantly lacking when this is obtained through OHIP but did not show that the assessment is not reasonably available on a balance of probabilities. In fact, the evidence shows that the referral is available to him and both his family physician and orthopedic surgeon have been attentive and responsive in addressing his physical impairments. The allegation that the assessment provided by the orthopedic surgeon through OHIP is likely to be less comprehensive than the applicant would prefer is not evidence that the assessment is not reasonably available. I note also that the applicant did not provide any evidence that the assessment would be deficient beyond counsel’s statement that in his experience the assessments performed by OHIP are not detailed.

33Having found the orthopedic assessment was reasonably available through OHIP, I find that the applicant is not entitled to the cost of examination of this treatment plan.

CONCLUSION

34Having found that the applicant is not entitled to the benefits in dispute, it follows that he is not entitled to interest on any amount outstanding. Additionally, as award is calculated as a percentage of the benefits owed, an award of any amount is not payable.

ORDER

35The application is denied. The applicant is not entitled to NEBs, or the treatment plans in dispute. As a result, there is no interest and no award payable to the applicant.

Footnotes

1. 1The factors that inform a determination of NEB entitlement are outlined in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.
2. 2O.Reg. 34/10, at s. 3(7)(a).
3. 3See G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT)(Reconsideration Decision).