Licence Appeal Tribunal File Number: 20-006940/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:
Nitharsan Kowrikanthan
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Jason Frost, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, N.K., was involved in an automobile accident on July 4, 2019, and sought benefits from the respondent, Sonnet, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). N.K. applied for medical and rehabilitation benefits, a cost of examination expense as well as a non-earner benefit (“NEB”).
2Sonnet denied the claimed treatment plans on the basis that the plans were not reasonable and necessary. It paid NEBs in the amount of $185.00 per week from approximately August 3, 2019 to October 4, 2020 before discontinuing the benefit based on a determination that N.K. no longer suffered a complete inability to carry on a normal life. N.K. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES TO BE DECIDED
3The following issues are to be decided, as per the Case Conference Order dated December 1, 2020:
a. Is N.K. entitled to an NEB in the amount of $185.00 per week from October 5, 2020 to July 3, 2021?
b. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by All Health Medical in a treatment plan (OCF-18) submitted May 21, 2020, and denied on May 29, 2020, reasonable and necessary?
c. Is the medical benefit in the amount of $3,642.65 for psychological services, recommended by All Health Medical in an OCF-18 dated June 9, 2020, denied on August 12, 2020, reasonable and necessary?
d. Is N.K. entitled to interest on any overdue payment of benefits?
e. Is N.K. entitled to an award under Ontario Regulation 664 (O. Reg. 664) because Sonnet unreasonably withheld or delayed payment of benefits?
FINDINGs
4N.K. is not entitled to payment of the NEB as he has not demonstrated a complete inability to carry on a normal life during the period in dispute.
5N.K. is not entitled to payment for the OCF-18 in the amount of $2,200.00 for a psychological assessment, as it is not reasonable and necessary.
6N.K. is not entitled to the OCF-18 in the amount of $3,642.65, as he has not established that it is reasonable and necessary.
7N.K. is not entitled to an award.
BACKGROUND
Pre-existing health history
8N.K. reported having surgery in 2016 and 2018 to have fistulas inserted for dialysis. He reported being hospitalized in 2016 for hemolytic uremic syndrome. He had kidney failure, so now he is on hemodialysis three times a week. N.K. also has high blood pressure, reported vision loss as a result of decreased blood flow to the eyes, and he suffers from hypertension. N.K. had a previous accident in 2016, for which he attended physiotherapy for approximately one year to treat his accident-related injuries.
July 4, 2019 accident
9At the time of the accident, N.K., a 33-year-old male, was unemployed and receiving benefits through the Ontario Disability Support Program for his pre-existing health issues.
10In its responding submissions, Sonnet raises the issue of whether N.K. was involved in an ‘accident’, and relies on the police report, collision report, and the evidence provided at an examination under oath.
11Sonnet did not raise the question of was N.K. in an accident as an issue at the case conference. It appears that the first time it was raised was in its responding submissions. I also note that the onus is on N.K. to prove all elements of the claim, including satisfying the Tribunal that he was in an accident as that term is defined in the Scheduled. I am satisfied that he was in an accident because of the following:
a. On July 4, 2019, N.K. was a seat-belted back seat passenger in a vehicle making that was allegedly t-boned while making a left turn.
b. On review of the property damage photos, there is no damage to the driver’s side of the vehicle, as alleged by N.K.
c. The damage is limited to the front driver’s fender and front bumper/grille area.
d. Further, there is no evidence that the airbags deployed in the collision, also indicating that the collision was not as significant as a T-bone collision.
ANALYSIS
Is N.K. entitled to an NEB?
12The insurer shall pay a NEB to an insured who suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. It is well-settled that Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, provides the framework for the NEB analysis into whether an insured suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured identifies as important. To meet the test, an insured must be continuously prevented from engaging in substantially all of their pre-accident activities and, where pain is present, it should practically prevent them from engaging in those activities.
13It is N.K.’s pre-accident medical condition, not his accident-related injuries, that continue to affect him post-accident. There is no evidence that any of his pre-existing conditions were exacerbated by the accident. As such, I find that the evidence regarding N.K.’s pre-accident activities and life and the impact of his accident-related impairments leading to a complete inability to carry on a normal life, does not meet the requirements of the NEB test. On the evidence, I find that N.K. is not entitled to a NEB for the period in dispute as he has not demonstrated a complete inability to carry on a normal life as a result of injuries he sustained in the accident.
14In support of his NEB claim, N.K. relies on the October 9, 2019 Disability Certificate (OCF-3) of chiropractor, Dr. Grigoropoulos indicating that he suffered a WAD2 injury, unspecified closed fracture of the bony thorax, sprain and strain of the lumbar spine and knee, headache and contusion of the abdominal wall. I note that Dr. Grigoropoulos indicated that N.K. suffered a complete inability to carry on a normal life, however the duration of the disability was indicated to be 9-12 weeks. N.K. also relies on the clinical notes and records of GTA Chiropractic Centre, which note the treatment history and responses to physical treatment.
15In response, Sonnet argues that N.K. does not suffer a complete inability to carry on a normal life as a result of the accident. Sonnet submits that N.K. was on ODSP as a result of his pre-existing medical condition and was unable to work. Its position is that N.K. was still able to engage in substantially all of his pre-accident activities and that there is no evidence of limited functional ability when the comparison is made between pre-and post-accident function. Sonnet relies on the September 17, 2020 s. 44 general practitioner report of Dr. Khaled; the September 17, 2020 reports from psychologist, Dr. Rubenstein; the September 17, 2020 occupational therapy report of Ms. Abraham; and the October 16, 2020 paper review from Dr. Khaled, who all determined that N.K. did not suffer a complete inability to carry on a normal life as a result of the accident.
16While N.K. submits that he is entitled to a NEB, his submissions and evidence regarding his pre-accident activities (regular dialysis, using the bus to meet friends, grocery shopping, computer/gaming, going for walks/bike riding) fail to show how his accident-related impairments have led to a complete inability to carry on a normal life. Paragraphs 6-7 of his submissions detail his activities at the time of the accident, including a typical non-dialysis day. In addition, post-accident, there is still bus use, less frequent walks (noted as ‘stopped’ in his submissions), no socialization with friends and staying home, sleeping.
17As submissions are not evidence, I place more weight on N.K.’s reporting to the s. 44 assessors, that he is still able to grocery shop, still goes for occasional walks/bike rides, still uses the bus as necessary, and still makes use of his computer to game and communicate. Even more telling about N.K.’s post-accident functionality, is his reporting (and the objective assessment of Ms. Abraham) that he is still able to perform all of his personal care tasks independently. While N.K. reports that he no longer vacuums or shovels snow, I find these to be infrequent pre-accident tasks, and a minimal reduction of infrequent tasks does not indicate a complete inability.
18Further, N.K.’s submissions fail to provide a pre-and post-accident comparison of the amount of time spent engaging in his pre-accident activities or how much value and importance was placed on each. N.K. failed to show how his pre-accident impairments have impacted his ability to engage in his pre-accident activities, and how his post-accident functional impairment is different to the extent that he is unable to continuously engage in substantially all of his pre-accident activities. To simply imply or state that he is no longer able to engage in his pre-accident activities is not enough, an analysis of why they cannot be done must be provided. N.K.’s submissions fail to do so.
19By comparison, while paragraphs 6-7 of N.K.’s submissions touch on his pre-and post-accident activities, the remainder of his submissions on the NEB issue, largely focus on his challenges of the s. 44 assessor’s reports. Essentially, his argument is that because of the alleged shortcomings or perceived errors in their reports, this supports his submission that he suffers a complete inability to carry on a normal life, and is therefore entitled to a NEB. Again, the Heath test requires a more detailed analysis of the difference in function between the pre-and post-accident life. The normal day to day activities that N.K. reported to the assessors that he engaged in, have not been substantially impacted. In addition, the OCF-3 indicates a 9 to12-week disability duration, as one of the key documents that speaks to post-accident function, the OCF-3 is not indicative of a complete inability.
20Despite Dr. Grigoropoulos indicating difficulties with walking, sitting, standing, reaching, bending, lifting and carrying, these activities are still being performed post-accident, with N.K. going on occasional walks/bike rides, taking the bus as required, and occasionally helping with easier household chores. From the objective testing conducted by Ms. Abraham, and N.K.’s self-reporting, it appears that he is not completely unable to do essentially all of his pre-accident activities.
21Notably, Ms. Abraham observed N.K. navigating stairs, transferring from his bed, climbing in and out of the bathtub, utilizing a vacuum, performing range of motion exercises, lifting/carrying, pushing and pulling. While he did report pain during sitting, standing, climbing stairs after approximately 20-30 minutes, N.K. reported an ability to help with housekeeping tasks and grocery shopping if needed.
22I acknowledge that N.K. reports varying levels of pain during some activities, however, I do not find that this pain, as a primary factor, practically prevents him from engaging in any of those activities. He reported that on dialysis days, he is very tired and would come home and sleep. As his dialysis treatment was three times a week, there is already a significant portion of his week that he is not able to engage in many of his daily activities. Considering his thrice-weekly dialysis treatments prevent him from being active on those days, it stands to reason that the remaining four days of the week would be easier to determine whether he is practically prevented from engaging in his pre-accident activities on those remaining four days. N.K. has not demonstrated how his pain practically prevents him from engaging in his pre-accident activities on those remaining four days.
23Heath allows for an applicant to identify the activities they most value and submit how these most valued activities have changed as a result of pain, thereby resulting in a complete inability to carry on a normal life. According to Heath, activities that are identified as highly valued attract more weight on analysis. N.K. did not identify any activities that he placed greater value on pre-accident but commented that he engaged in certain activities. While I am aware that N.K. may not engage in the activities as often, I do not find that a somewhat reduced participation constitutes a complete inability to live a normal life.
24While I note that N.K. was diagnosed with psychological impairments, similarly, there is no analysis on how these accident-related psychological issues impact his daily functioning to justify a NEB on that basis. Dr. Langis, psychologist, notes in his June 16, 2020 report that N.K. suffers from moderate depression, severe anxiety, resulting in a guarded prognosis for a return to function. Dr. Langis diagnosed N.K. with adjustment-like disorder and passenger-related situational phobia.
25Section 44 assessor, psychologist, Dr. Rubenstein’s reports indicate that N.K. did not develop any psychological impairment as a result of injuries sustained in the accident, and as such did not suffer a complete inability to carry on a normal life. I recognize that N.K. reports negative feelings to Dr. Langis, however, there is dissimilar self-reporting to Dr. Rubenstein, who concludes that N.K. did not suffer from any diagnosable condition. There is no analysis from N.K. on how his pre-accident function in activities has been impacted by any psychological impairment, which is in line with Dr. Rubenstein’s determinations.
26N.K.’s lack of analysis of how any accident-related psychological impairment has practically continuously prevented him from engaging in substantially all of his pre-accident activities is not helpful for his NEB claim. Given the short duration of time between Dr. Langis’ and Dr. Rubenstein’s report, it would seem that similar self-reporting would be noted. However, it appears that Dr. Langis’ assessment solicited a much more psychologically impacted N.K, than the report from Dr. Rubenstein three months later. Notably, N.K. specifically reported to Dr. Rubenstein that, “his daily activities continue as prior to the index accident. He bikes, walks, watches TV and visits a local park.” Dr. Rubenstein noted that N.K.’s activities are “hampered only by a visual impairment diagnosed in 2016.” This is not indicative of an individual who suffers from a psychological impairment that practically prevents him from engaging in his pre-accident activities. I find that N.K.’s submissions did not clarify how he has suffered a complete inability to carry on a normal life as a result of accident-related psychological impairments.
27The onus to establish entitlement for a NEB remains on N.K. I do not find that he has met his onus to prove that he suffers from a complete inability to carry on a normal life as a result of the accident. Accordingly, N.K. is not entitled to a NEB for the period in dispute.
Is the OCF-18 in the amount of $2,200.00 reasonable and necessary?
Is the OCF-18 in the amount of $3,642.65 reasonable and necessary?
28In order to be entitled to payment for an assessment plan under the Schedule, an applicant must demonstrate that the claimed benefits are reasonable and necessary and incurred as a result of the accident. In order to meet his onus, N.K. should identify the goals of treatment, demonstrate how the goals are being met to a reasonable degree and prove on a balance of probabilities that the time and cost of the goals are reasonable.
29I find that N.K has not met his burden to establish the OCF-18s are reasonable and necessary.
30N.K. submits that the June 9, 2020 psychological report from All Health Medical Centre supports his claim for the incurred psychological assessment. Based on objective testing, the report notes a diagnosis of adjustment-like disorder with prolonged duration of more than six months, vehicular anxiety (passenger). 12 sessions of psychotherapy are recommended (the OCF-18 in the amount of $3,642.65).
31In response, Sonnet submits that there is no evidence of any accident-related psychological impairment, and the assessment is not reasonable and necessary and is barred by the Minor Injury Guideline (the “MIG”). It relies on the September 17, 2020 report and addendum of Dr. Rubinstein, discussed earlier. Dr. Rubenstein concluded that N.K. did not suffer any diagnosable psychological impairment and did not suffer a complete inability to carry on a normal life.
32N.K. points out that Dr. Rubenstein’s reports do not consider the OCF-18 and should be given little weight as a result. I agree that the scope of Dr. Rubenstein’s reports focus entirely on whether N.K. suffers a complete inability to carry on a normal life and do not specifically address this disputed OCF-18, however, the conclusion reached in his report is that N.K. does not have a psychological condition that impairs him in any way. I have stated above that I prefer Dr. R’s report. The onus is on N.K. to at least establish that he may have the condition(s) that the assessment is intended to address. I am not persuaded that N.K. suffers from the psychological diagnoses that were noted by All Health Medical, nor by the goals of the OCF-18, noted to be pain reduction, a return to pre-accident level of psychological functioning and a return to activities of normal living. I find neither of the proposed OCF-18s is reasonable and necessary.
33As no benefits are payable, Sonnet cannot have unreasonably withheld or delayed payment of benefits. Accordingly, an award is not appropriate.
CONCLUSION
34N.K. is not entitled to a NEB as he has not established that he suffers a complete inability to carry on a normal life.
35N.K. is not entitled to the disputed OCF-18s or interest, as they are not reasonable and necessary.
Released: November 7, 2022
Derek Grant
Adjudicator