Nodwell v. Aviva General Insurance, 2021 CanLII 82757

Citation: Nodwell v. Aviva General Insurance, 2021 ONLAT 19-012636/AABS

Release date: 08/30/2021

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:

Barbara Nodwell

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Ben Fotia, Counsel

For the Respondent: Louise Kanary, Counsel

HEARD: By way of written submissions

OVERVIEW

1Barbara Nodwell (“applicant”) was involved in a motor vehicle accident on June 7, 2018 (the “accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Aviva General Insurance (“respondent”) paid the applicant non-earner benefits (“NEB”) until December 28, 2018 when it determined her to be ineligible for NEB. The respondent denied the applicant, attendant care benefits (“ACB”) and various medical benefits.

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

ISSUES

4The 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 July 5, 2018 to date and ongoing?

ii. Is the applicant entitled to ACB in the amount of $519.75 per month from September 19, 2018 to date and ongoing?

iii. Is the applicant entitled to receive medical benefits and a cost of examination recommended by Physiocare and Wellness Clinic in the amount of:

a. $4,513.50 for physiotherapy services, submitted in a treatment plan (OCF-18) dated January 11, 2019 and denied by the respondent January 14, 2019?

b. $1,064.00 for the costs of an Attendant Care Needs and Form-1 Assessment, submitted in a treatment plan (OCF-18) dated January 4, 2019 and denied by the respondent January 17, 2019?²

c. $4,113.50 for physiotherapy services, submitted in a treatment plan (OCF-18) dated February 13, 2020 and denied by the respondent on February 24, 2020?

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

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

RESULT

5I find that the applicant is not entitled to NEB, ACB or the three disputed treatment plans. No award is made. No interest is payable.

LAW

Medical and Rehabilitation Expenses

6Sections 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 he or she seeks is reasonable and necessary.³

Attendant Care Benefits

7Section 19 of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident provided by an aide or attendant. Section 3(7) provides further guidance on when an expense is incurred:

i. the insured person has received the goods or services to which the expense relates;

ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and,

iii. the person who provided the goods or services a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or b) sustained an economic loss as a result of providing the goods or services to the insured person.

8Section 42(1) provides that an application for ACB must be in the form of, and contain the information required to be provided in, the document entitled Assessment of Attendant Care Needs (“Form-1”). Section 42(5) provides that an insurer is not required to pay an expense for ACB which is incurred prior to a Form 1 being submitted to the insurer. The onus is on the applicant to prove entitlement to ACB and that the ACB claimed is reasonable and necessary pursuant to s. 19 on a balance of probabilities.

Non-Earner Benefits (NEB)

9Section 12 of the Schedule requires an insurer to pay 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.

10Section 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.

11The 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.

12The Ontario Court of Appeal⁴ set out the approach to determining whether an insured has satisfied the s. 3(7) test:

• There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

• 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.

• 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.

• 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.

• “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.

• 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?

13The 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. Pre-accident, the applicant submits she sewed, cut fabric and made clothing, but post-accident cannot because of extreme pain and swelling in her neck and shoulder. Pre-accident the applicant submits she used to wash the floors but post-accident it takes her most of the day to do so due to her low back pain. Pre-accident, the applicant submits she used to go shopping but post-accident she needs help carrying bags due to arm and shoulder pain. Pre-accident the applicant submits she did her own laundry, but post-accident cannot because carrying the laundry basket causes her pain and swelling in her shoulder and neck.

14The respondent submits it paid the applicant NEB in good faith until December 28, 2018 at which time the respondent determined from its assessments that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. The respondent also submits that the applicant’s medical evidence is insufficient to satisfy her onus of establishing her entitlement to NEB.

15I find that the applicant’s evidence is insufficient to establish she suffers from a complete inability to carry on a normal life for the following reasons.

16It appears from her disability certificates and other medical records that the applicant’s physical injuries were sprain and strain type injuries which would likely be considered predominantly minor except for her psychological issues. The respondent appears to have removed the applicant from the Minor Injury Guideline because of her psychological diagnosis discussed below.

17The June 11, 2018 OCF-3, disability certificate by applicant’s physiotherapist Manglinder Dhaliwal and the January 28, 2020 disability certificate by applicant’s chiropractor both check the box that indicates the applicant suffers a complete inability to carry on a normal life. However, both disability certificates contain the handwritten qualification that the applicant has a “…partial inability to complete [Activities of Daily Living]”. Partial inability does not equate to and is insufficient to establish complete inability. As a result, these disability certificates are not sufficient to establish that the applicant suffers from a complete inability to carry on a normal life as a result of injuries suffered in the accident.

18The records from the applicant’s family physician show little follow-up with the applicant post-accident. There is no disability certificate or opinion from the applicant’s physician that she suffers a complete inability to carry on a normal life. The records of the applicant’s treatment facility are also insufficient to establish that she suffers from a complete inability to carry on a normal life.

19The applicant’s own description of her pre-accident activities in the October 1, 2018 questionnaire she completed for the respondent reveals few activities pre-accident. The applicant described sewing, cutting fabric, cutting her toenails, washing floors, shopping and laundry. As confirmed in the respondent’s December 2018 multi-disciplinary report, the applicant told the respondent’s assessors that she was independent in her personal care, had resumed driving, dusting, laundry, grocery shopping, visiting friends and family, sewing, watching TV and using the internet, and had resumed her pre-accident housekeeping with less than two hours assistance per week. This self-reporting by the applicant does not support her submission that she suffers a complete inability to carry on a normal life.

20The respondent’s orthopaedic assessor opined in December 2018 that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

21In December 2018, although the respondent’s psychological assessor diagnosed the applicant with an adjustment disorder with mixed anxiety and depression imposed over chronic depression, the opinion was that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. In any event, as a result of treatment provided, in May 2019, the applicant was discharged from treatment and the treating psychologist opined that no further treatment was required. None of the psychological records of the applicant establish that her now treated psychological issues are untreatable, unmanageable or that the applicant is unable to carry on a normal life.

22In February 2019 after an in-home assessment, the respondent’s occupational therapist assessor opined that the applicant was able to participate in her pre-accident activities of daily living.

23Having reviewed all of the submissions, case law and 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. Therefore, the applicant is not entitled to NEB for the period claimed.

Is the Applicant Entitled to ACB from September 19, 2018 to Date And Ongoing?

24The applicant submits that the respondent’s assessors did not fairly take into account the totality of the medical evidence available and relies on the September 19, 2018 report of Daljeet Johal, occupational therapist which recommended ACB in the amount of $519.75 per month. The applicant also submits that s. 3(8) of the Schedule and case law permit ACB to be found payable even if not incurred.

25I find that the applicant is not eligible for ACB between the date of the accident and November 9, 2018 when her Form 1, assessment of attendant care needs, was submitted. Pursuant to s. 42(5), the applicant is not eligible for ACB before her Form 1 was received by the respondent. I also find that the applicant is not entitled to ACB for the balance of the period in dispute as this benefit is not reasonable and necessary. After reviewing the medical documentation submitted, including the report of Daljeet Johal, I find that there is insufficient evidence to establish that the applicant is entitled to ACB as discussed below.

26Further, even if the applicant had been able to establish entitlement to ACB, I find that the applicant has not met her burden to prove on the balance of probabilities that ACB was incurred by her within the meaning of s. 3(7). The applicant has failed to submit proof that any expense was incurred. No details of attendant care assistance allegedly incurred, the name of any service providers, contact information, dates attended, assistance provided, time spent, remuneration for providing assistance, OCF-6s, receipts, invoices, expenses proof of incurred or economic loss have been put forward by the applicant. Schedule requires that an expense in respect of goods or services is not incurred by an insured person unless the goods or services were received by the insured, the insured has paid, promised to pay or is legally obligated to pay the expense and the person who provided the goods or services did so in the course of their employment or sustained an economic loss as a result of providing the goods and services. Here, the applicant has only submitted a Form 1 which is insufficient, without detail and documentation, to establish that ACB was incurred.

27The applicant submits that the ACB may be found “deemed incurred” and relies on Daljeet Johal’s assessment report, case law⁵, and s. 3(8) of the Schedule. Section 3(8) relieves an insured from proving the care expense was incurred if it was withheld by the insurer despite having been reasonable and necessary.

28I do not find Daljeet Johal’s assessment or the applicant’s self-reporting of pain and limitations to be sufficiently persuasive evidence to deem ACB incurred or reasonable and necessary and therefore payable.

29When the respondent received the applicant’s Form 1, it arranged for its own occupational therapist, Lynn Rutledge, to assess the applicant at her home in February 2019. Ms. Rutledge opined that the applicant does not require an aide or attendant to assist with attendant care tasks as she shows sufficient mobility, range of motion, strength and functioning to perform these tasks independently. I prefer the opinion of Ms. Rutledge that ACB is not required over that of Daljeet Johal who assessed the applicant in September, 2018 because Ms. Rutledge’s opinion is borne out by the applicant’s delay in seeking ACB for several months after the accident and in failing to submit any details or documentation that she incurred any ACB.

30Further, the applicant self-reported to the respondent’s assessors in November, 2018 that she was independent in her personal care.

31Having reviewed all of the submissions, case law and evidence of the applicant and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish ACB is reasonable and necessary and incurred. As a result, the applicant is not entitled to ACB for the period claimed.

Two Disputed Treatment Plans for Physiotherapy - $4,513.50 and $4,113.50

32I find that the applicant is not entitled to these disputed treatment plans for physiotherapy because the applicant has not provided sufficient evidence to meet her burden of proof that they are reasonable and necessary.

33There is little support for these disputed treatment plans from the family physician who treated the applicant’s physical injuries post-accident. The applicant did not point to any recommendation from her family physician to support the reasonableness and necessity of the continued physical therapy proposed in these disputed treatment plans.

34The applicant’s physical injuries from the accident were minor in nature.

35The respondent submits that it has funded more than $10,000.00 worth of physical treatment to date. The applicant did not reply to this submission. The applicant has not established that further physical treatment is reasonable and necessary.

36There is little evidence as to how the proposed treatment plans will achieve their goals or evidence establishing that the proposed treatment plans are reasonable and necessary as a result of injuries suffered in the accident, or that the overall cost is reasonable and necessary except from the proposed treatment providers. It is well established that a treatment plan, without more, is not sufficient evidence to establish an applicant’s entitlement on the basis of reasonableness and necessity.

37To the contrary, the applicant self-reported before January 2019 she had resumed many of her pre-accident physical activities. As confirmed in the respondent’s December 2018 multi-disciplinary report, the applicant told the respondent’s assessors that she had resumed driving, dusting, laundry, grocery shopping, and sewing, and had resumed her pre-accident housekeeping with less than two hours assistance per week.

38The applicant submits that assistance with managing pain has been recognized as a legitimate treatment goal. However, there is little evidence before me that the applicant’s pain warrants further physical therapies.

39Overall, the applicant submits that her injuries are not uncomplicated soft tissue injuries, that her injuries have not resolved, and she has not exhausted the $65,000.00 worth of benefits provided to her under her insurance policy. I disagree. Whether or not the applicant has exhausted the $65,000.00 worth of benefits under her insurance policy is not relevant to entitlement which must be established with evidence. The applicant’s other two submissions were not established through persuasive medical evidence. Regardless, even if the applicant had established them, none of these relieve the applicant of the onus to establish the reasonableness of and necessity for the disputed treatment plans which remains the applicant’s burden.

Disputed Treatment Plan for Assistive Devices - $1,064.00

40This disputed treatment plan is for assistive devices recommended by Daljeet Johal being a non-slip bath mat, grab bars for the shower, a bathtub seat, a long handled tub scrubber, a long handled duster, a light weight vacuum cleaner, and a light weight mop. In addition, the treatment plan recommends a back support with a rigid shell. The applicant submits that in addition to the report of her occupational therapist, the reports her psychologist and the records of her physical treatment facility show that these assistive devices are reasonable and necessary.

41I find that the applicant’s medical evidence is not sufficient to establish that these assistive devices are reasonable and necessary nor has she brought forward evidence to establish that the overall cost of the assistive devices is reasonable and necessary. The onus is on the applicant and she has not met it for the following reasons.

42It is clear from the medical evidence that the applicant’s physical injuries from the accident were minor. There is no recommendation from the applicant’s family physician or any other physician regarding the proposed assistive devices. The report of applicant’s occupational therapist Daljeet Johal who does recommend most of the assistive devices is undermined by the applicant’s self-reporting to the respondent’s assessors in November 2018 that she was independent in her personal care. Daljeet Johal’s reports is at odds with the report of respondent’s occupation therapist Ms. Rutledge which I have preferred for the reasons set out above. As a result, I do not accept the recommendations for these assistive devices made by Daljeet Johal. The report of the applicant’s psychologist is insufficient to establish that these assistive devices are reasonable and necessary.

Award

43Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. There was no payment unreasonably withheld or delayed. The respondent was entitled to deny NEB, ACB, and the three treatment plans in dispute for the reasons it expressed which were not unreasonable given the evidence. For these reasons, there is no award.

Interest

44As there are no benefits payable, no interest is payable.

ORDER

45For the reasons outlined above, I find that the applicant is not entitled to NEB, ACB or the three disputed treatment plans. No award made. No interest is payable. The applicant’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Both parties in their submissions agree that this treatment plan is misdescribed in the Tribunal’s case conference Order and is actually for assistive devices.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Crt).
4. 4Heath v. Economical Mutual Insurance Company, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
5. 5McMichael v. Belair Ins. Co., FSCO A02-001081.