Citation: Tyson v. Aviva General Insurance, 2022 ONLAT 20-005056/AABS

Licence Appeal Tribunal File Number: 20-005056/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:

Frank Tyson

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Hufriz Turel, Paralegal

For the Respondent:

Andrea Bandow, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (F.T.) was involved in an automobile accident on August 1, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ Aviva determined that F.T. did not suffer a complete inability to carry on a normal life and denied the Non-Earner Benefit (“NEB”) in dispute. Aviva denied the treatment plans in dispute based on its determination that they were not reasonable and necessary. F.T. disagreed and applied to the Tribunal for resolution of the dispute.

DISCUSSION

Failure to comply with Tribunal Order

2Aviva submits that F.T. submitted medical records in their entirety and did not use pinpoint reference, contrary to the Tribunal Order. It also submits that the handwritten annotations in the clinical notes and records (“CNRs”) of the family physician should not be accepted as evidence as the records are typed and there is no evidence of the handwriting belonging to the family physician.

3I will allow the medical records to be relied upon, however, where there is no pinpoint reference to specific entries from the family physician, I will not consider those records. Regarding the annotations, F.T. did not confirm or deny whether the annotations were written by the family physician, and on the evidence, it is difficult to ascertain what justification exists why the family physician would include any handwritten annotations. It is well-settled that it is not the role of the trier of fact to piece together evidence and figure out the case before them. I do not find the handwritten annotations to be persuasive, therefore, I place little weight on any of the medical records that contain the annotations. The onus is on the parties to clearly direct the trier of fact to the evidence relevant to the issues in dispute.

New evidence on Reply

4Aviva argues that F.T. submitted new evidence on reply, which is not permitted. F.T. submitted a chart, detailing his pre-and post-accident activities of daily living, which was not referenced in his initial submissions. It is well settled that new evidence on reply is not permitted. The purpose of reply submissions is to respond to any contentions raised by the opposing party responding to initial arguments. New evidence should not be presented in reply submissions, as this is prejudicial to the opposing party in not allowing for an opportunity to properly defend the case against it. Accordingly, I place little weight on the pre-and post- accident activities chart for the purposes of considering entitlement to the NEB.

ISSUES

5I am asked to decide the following issues:

a. Is F.T. entitled to an NEB of $185.00 per week from July 18, 2018 to August 1, 2019?

b. Is the medical benefit in the amount of $2,606.63 for physiotherapy services, recommended by Movement Physio in a treatment plan (OCF-18) dated February 28, 2018, reasonable and necessary?

c. Is the medical benefit in the amount of $4,579.00 for chiropractic services, recommended by Movement Physio in an OCF-18 dated January 30, 2019, reasonable and necessary?

d. Is F.T. entitled to interest on any overdue payment of benefits?

FINDINGs

6F.T. is not entitled to payment of an NEB as he has not demonstrated he suffers a complete inability to carry on a normal life during the disputed period of entitlement.

7F.T. is not entitled to payment of the OCF-18s in dispute, or interest in accordance with s. 51, as they are not reasonable and necessary.

BACKGROUND

8Prior to the accident, F.T. suffered from varicose veins, having five surgeries to treat the condition, and venous ulcers with pain in his legs, ankle pain and swelling, chest pain, back pains/sprains, Grade 1 lumbar spondylolysis, degenerative disc disease, facet osteoarthritis of the lumbar spine, bilateral knee osteoarthritis, and shoulder pain. In addition, F.T. had a previous accident approximately 15 years ago. As a result of that accident, he suffered injuries to his low back and neck.

9While F.T. reported post-accident shoulder pain, the records show a history of pre-accident shoulder pain complaints. For example, on December 12, 2017, F.T. reported that he had shoulder pain for 6-7 months, on June 12, 2019, he reported shoulder pain ongoing for three years. On January 22, 2018, F.T. reported shoulder pain for about a year, to treating physician Dr. Lansang, who found the shoulder condition to be degenerative.

ANALYSIS

Non-earner Benefit

10Section 12 of the Schedule provides that an insurer shall pay for a NEB to an insured person who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104 weeks. Sections 12(3) (a) and (c) further provide that the insurer is not required to pay a NEB for the first four weeks after the onset of the disability and for any period more than 104 weeks after the accident.

11The insurer shall pay NEBs to an insured person if they suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”) provides the framework for the NEB analysis into whether an insured person 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 person identifies as important. To meet the test, an insured person 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.

12It is unclear from the evidence if F.T. received any NEBs, however, I note that the period in dispute is from July 18, 2018 to August 1, 2019. Aviva denied the benefit on the basis of s. 44 reports that determined that F.T. is independent with his activities of self-care, housekeeping and mobility. Aviva asserts that the medical evidence supports that F.T. did not suffer a complete inability to carry on a normal life and, despite his pain symptomatology, it submits that his pain does not practically prevent him from engaging in his pre-accident activities.

13F.T. submits that he is entitled to an NEB for the period of July 18, 2018 to August 1, 2019, because his pre-existing injuries were exacerbated by the accident. He submits that while the pain would be alleviated with medication and rest, due to pain and stiff muscles, he was limited in his range of motion, his neck and back pain were exacerbated with repeated activities like standing, weight bearing, walking, bending, lifting, stooping, and prolonged sitting/standing. Despite receiving medications, passive and active treatments, F.T.’s activities and life circumstances during the period in dispute have not improved. In this regard, he submits that he could not walk his dog, complete household tasks, cook, perform home maintenance tasks like gardening, or help with his father-in-law’s care. To this end, F.T. relies on his medical records that he submits consistently document that he is unable to engage in substantially all of his pre-accident activities during the period in dispute.

14On balance, I agree with Aviva and find that its denial of F.T.’s NEB was appropriate, as he has not demonstrated that he continued to suffer a complete inability to carry on a normal life during the period in dispute. It is clear that F.T. continued to experience pain during this period, as all of the reports in evidence confirm that he continued to experience pain in his shoulders, neck, and knees. However, I agree with Aviva that where pain is the primary factor preventing an applicant from engaging in pre-accident activities, the Heath case requires the applicant to show that the pain practically prevents them from engaging in those activities. I find the evidence and F.T.’s self-reporting does not meet this stringent test.

15F.T. relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Thirugnanasampanthapillai (“Dr. T.”), the records of Movement Physio and Rehab and the OCF-3 of physiotherapist Malik Hundani. However, I am not persuaded by this evidence, as there is little indication that the ongoing complaints are accident-related (Dr. T.’s records), or that there is any documented evidence that his pain symptomatology practically prevents him from engaging in his pre-accident activities (Movement Physio and Rehab). The medical evidence shows that F.T. has ongoing pain complaints and symptomatology, however, there is limited objective evidence that establishes that F.T. suffers a complete inability to carry on a normal life.

16I note that the OCF-3 author, Mr. Hundani, qualified his positive endorsement of F.T. suffering a complete inability, stating that F.T. has difficulties with some functional abilities, i.e.: standing, walking, sitting, sleeping and bending. Despite this, the OCF-3 indicates that the anticipated duration of disability was 9-12 weeks. While Mr. Hundani notes that F.T. suffers a substantial inability to perform home maintenance services, the records from Movement Physio and Rehab note pain complaints due to F.T. cleaning his backyard and shovelling.

17I find this evidence referred to in paragraph 14 difficult to overlook in assessing whether F.T. has met his burden because, on its face, the evidence does not support his claim of entitlement to an NEB.

18In the May 25, 2018 s. 44 report, orthopaedic surgeon Dr. Safir found that there was no objective evidence of any musculoskeletal impairment as a result of the accident; that there was no clinical indication to impose any specific restrictions on F.T.’s performance of his normal activities of daily life; and concluded that he does not suffer a complete inability to carry on a normal life. The May 25, 2018 s. 44 occupational therapy report notes that F.T. demonstrated active range of motion within functional limits in all major joint systems, including the cervical and lumbar spine, and bilateral upper and lower extremities, as well as functional strength, standing and sitting tolerances, and abilities to perform bending and reaching tasks.

19On balance, I do not find F.T.’s evidence or subjective reporting to be a compelling indication that, despite his pain, he is prevented from engaging in “substantially all of the activities” he did pre-accident. Accordingly, I find it cannot be said that he suffered a complete inability to carry on a normal life during the period in dispute where it is clear that his pain does not practically prevent him from doing things, particularly labour-intensive activities.

Are the OCF-18s reasonable and necessary?

20In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the cost of the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

21For the reasons to follow, I find that F.T. has not demonstrated that the disputed OCF-18s are reasonable and necessary.

22I note that F.T. has not produced the OCF-18s. Further, F.T. did not reference any of the OCF-18s in his submissions. It is incumbent on an insured person who makes a claim of entitlement for treatment to ensure that the treatment plans are before the trier of fact. It is not for the trier of fact to wade through evidence and submissions to try and piece together an insured person’s claim, particularly so where the essential information of what the insured person is claiming is not properly before the trier of fact. The onus is on F.T. to satisfy his evidentiary burden, and he has failed to do so. As such, in this case where the OCF-18s are not referenced or provided, it is not necessary for me to request them in order to make a finding. In addition, F.T.’s submissions failed to provide a rationale to demonstrate why the treatment goals are reasonable, that the cost of the goals is being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. At a minimum, these three grounds should be established in support of a claim for treatment.

23F.T. has not provided me with compelling evidence that further facility-based treatment is reasonable. This is apparent in the documentation of Movement Physio and Rehab, where the records note that: (i) approximately one year later, on clinical observation, F.T. continued to report shoulder, low back, knee, ankle and neck pain, (ii) F.T. experienced minimal improvement in his condition despite receiving at least twice-monthly treatment for over two years and, (iii) F.T. reported pain after “cleaning the back yard” and “shovelling”. While F.T. submits he continues to suffer from various subjective pain complaints, the objective evidence does not support his subjective complaints.

24Accordingly, I find F.T. is not entitled to payment for either of the OCF-18s. As no benefits are outstanding, no interest is payable.

CONCLUSION AND ORDER

25F.T. is not entitled to payment of an NEB for the period in dispute as he has not demonstrated a complete inability to carry on a normal life.

26F.T. is not entitled to the OCF-18s in dispute, as he has not demonstrated that they are reasonable and necessary. Accordingly, no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.