Sgambelluri v. Aviva Insurance Company, 2022 CanLII 120021

Sgambelluri v. Aviva Insurance Company, 2022 ONLAT 20-009937/AABS

Citation: Sgambelluri v. Aviva Insurance Company, 2022 ONLAT 20-009937/AABS

Licence Appeal Tribunal File Number: 20-009937/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:

Sofia Sgambelluri

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Sandeep Johal

APPEARANCES:

For the Applicant: Sofia Sgambelluri, Applicant Adriano Pranzitelli, Counsel

For the Respondent: Julie-Ann Macdonald, Adjuster Yann Grand-Clement, Counsel

HEARD: By Videoconference and written submissions

BACKGROUND

1While crossing a street, the applicant was injured in an automobile accident on October 10, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant submits that as a result of the accident she has sustained a traumatic brain injury, a concussion, post-concussion syndrome, blurry vision, headaches, a fractured clavicle, chronic back pain, post-traumatic stress disorder, major depressive disorder and cognitive disfunction.

3The respondent takes the position that the applicant is not entitled to the benefits in dispute as her computed tomography (CT) scan came back normal, her left clavicle fracture was treated non-operatively, she does not have any real restrictions with her day-to-day activities, and she has full range of motion in her shoulder.

4The parties participated in a case conference at which time the parties were unable to resolve the issues in dispute and hybrid hearing was scheduled whereby the applicant would be cross-examined on her affidavit by videoconference and the issues in dispute were to be heard in writing.

ISSUES TO BE DECIDED

5The following are the issues to be decided as per the case conference report and order:

i. Is the applicant entitled to a $100 weekly housekeeping and home maintenance benefit for cleaning services provided by Paramount Cleaning Services by Oshawa Physiotherapy and Rehabilitation from September 13, 2018 to date and ongoing?

ii. Is the applicant entitled to receive an income replacement benefit (“IRB”) in the amount of $137.01 per week for the period of August 27, 2018 to date and ongoing?

iii. Is the respondent entitled to a repayment of the IRB in the amount of $775.62?

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

RESULT

6The applicant is not entitled to housekeeping and home maintenance expenses.

7The applicant is not entitled to an IRB.

8The respondent is not entitled to a repayment of the IRB.

9Since there are no benefits owing, the applicant is not entitled to interest.

PRELIMINARY ISSUE

10The respondent wrote into the Tribunal after the parties’ written submissions were received objecting to the fact that the applicant’s initial submissions and reply submissions were in excess of the 10-page initial submissions limit and the 5-page reply submissions limit. The applicant’s initial submissions were 13 pages, and her reply submission were 7 pages. Furthermore, the respondent objects to the following components of the applicant’s reply submissions.

a. The applicant expands on occupational therapist Lu’s report and that there is nothing that gives rise to a proper basis to repeat or expand on Ms. Lu’s evidence.

b. The applicant raises for the first time a request for an award under s. 10 of Regulation 664.

11As a result of the above, the respondent submits that procedural fairness and natural justice preclude the adding of an issue by way of reply submissions for the first time, which denies the respondent any opportunity to respond.

12I agree with the respondent in part. Although the lengths of the applicant’s written submissions are not in strict compliance with the page limits as ordered, the respondent has not provided any submissions on what, if any, prejudice they have suffered as a result or what the respondent seeks by way of a remedy. I therefore decline to order any relief on the page limits.

13I find that the applicant’s expanded explanation of Ms. Lu’s report in her reply submissions is improper and is an attempt to split or bolster her case. The submissions on Ms. Lu’s report should have been provided in their entirety in the applicant’s initial submissions. To expand on these submissions after the respondent has completed their submissions and evidence is unfair to the respondent. Therefore, the applicant’s reply submissions that expands on the submissions raised in their initial submissions will not be considered for the purposes of this hearing.

14The request in the applicant’s reply submissions to add the issue of an award for the first time, would be a breach of procedural fairness and natural justice. The respondent does not have an opportunity to respond to the applicant’s submissions and raising new issues as part of reply submissions is improper and therefore the issue of an award will not be considered as part of this written hearing.

ANALYSIS

15Section 23 of the Schedule states that the respondent shall pay up to $100 per week for reasonable and necessary expenses incurred by or on behalf of the applicant if the applicant sustains a catastrophic impairment that results in a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident.

16The applicant has not been deemed to have suffered a catastrophic impairment in accordance with the Schedule; however, she has purchased optional benefits in accordance with s. 28 of the Schedule which provides that she would be entitled to claim housekeeping and home maintenance even though she is not catastrophically impaired. It is under s. 28 that the applicant claims to be entitled to claim housekeeping and home maintenance expenses.

Issue I: The Applicant is not entitled to housekeeping and home maintenance.

17The applicant bears the onus to prove on a balance of probabilities that she has a substantial inability to perform housekeeping and home maintenance services that she normally performed before the accident. However, for the following reasons, I find that she has not met her onus.

18The applicant’s claim for housekeeping and home maintenance services is up until October 10, 2019.² In order for the applicant to satisfy her onus, she must provide compelling and contemporaneous evidence in support of her claim.

19The applicant’s testimony is that prior to the accident she would help her mother with vacuuming, laundry, washing dishes, cooking, caring for her pets which included walking the dog once a week and picking up the dog droppings. She also cleaned the bathrooms and assisted with grocery shopping and did so almost every other day. The applicant testified that her father worked long hours and her mother was preoccupied with helping the applicant’s elderly grandfather and that is why she was responsible for most of the housekeeping at home.

20Following the accident, the applicant testified that she did not do any housekeeping tasks for years and it was only until recently that she started to resume some duties such as occasionally washing dishes, doing some laundry and helping her mother with grocery shopping. She avoids vacuuming and cleaning the washroom as it causes her pain; as for the housekeeping and home maintenance tasks she does, she does them slowly and spread out throughout the week to avoid significant flare ups in her pain.

21In support of her testimony, the applicant relies upon the OCF-3 (disability certificate) by Dr. Castiglione from August 14, 2018 and another OCF-3 completed by Dr. Chiavaroli from November 2019 that the applicant suffers an inability to perform housekeeping and home maintenance and that the disability would persist for more than 12 weeks. Furthermore, the applicant relies upon the report by neurologist Dr. Jha dated February 23, 2021, who opines that the applicant has a traumatic brain injury, post concussive syndrome with associated cognitive emotional/behavioural, psychological, physical and sleep related impairments.

22In my view, the OCF-3 is not compelling evidence in support of the applicant’s claim as it does not corroborate the applicant’s testimony because other than listing the applicant’s impairments and check-marking “Yes” to the question of whether the applicant has a substantial inability to perform housekeeping and home maintenance, it does not point to or provide an opinion as to why the doctor completing the OCF-3 would opine that she meets the disability test.

23Although I have the applicant’s self-reports and testimony, I am not pointed to contemporaneous medical evidence in support that the applicant has a substantial inability to perform housekeeping and home maintenance. The report of Dr. Jha opines that the applicant has a traumatic brain injury, and that the applicant is markedly impaired 3.5 years post accident; however, I am not persuaded that Dr. Jha’s report is evidence in support of her claim that she is substantially unable to complete housekeeping or home maintenance services. The report is not contemporaneous to her claim for housekeeping and home maintenance services as it is from February 2021 whereas the claim for the housekeeping and home maintenance benefit is up to 104 weeks after her accident date or October 2019. Dr. Jha’s report does not opine or provide any objective testing to show that she has a substantial inability to complete housekeeping and home maintenance services. As a result, I place less weight on this report.

24Furthermore, I find that the occupational therapy report of Heather Pickin that the applicant relies upon in support of her claim for housekeeping and home maintenance is also not contemporaneous to her claim as the report is from March 18, 2021, once again well past the 104-week mark to claim housekeeping and home maintenance. As a result, I do not find this report to be of assistance in support of her claim to have a substantial inability to perform housekeeping and home maintenance services during the 104 week claim period for the benefit.

25The applicant submits that the respondent’s insurer examination (“IE”) occupational therapy assessor, Cecelia Lu, in a report dated June 7, 2018 found that the applicant demonstrated reduced physical tolerance and due to her physical limitation, and that the applicant requires assistance with self-care tasks, basic bedroom clean up and preparing clothes for laundry. Therefore, she should be entitled to the housekeeping and home maintenance benefit.

26The report notes that the applicant has reduced physical tolerances and reduced strength for lifting and carrying over 10 pounds, however, the report was for the purposes of an attendant care benefit and does not speak to or make any reference as to whether the applicant has a substantial inability to perform housekeeping and home maintenance services. The report does not state to what level the applicant has reduced physical tolerance and strength and whether it is at a level that can be considered to be a substantial inability to perform the housekeeping and home maintenance tasks. As a result, I do not find the report to be in support of the applicant’s claim for a housekeeping and home maintenance benefit.

27The applicant also relies upon the Tribunal case of R.D. v. Pafco Insurance Company³ in support of her position that if the housekeeping and home maintenance services cannot be completed in a timely manner, that this is enough to satisfy the substantial inability test. However, even if I were to accept the applicant’s argument, there still must be compelling and contemporaneous evidence in support that the applicant is unable to complete the services in a timely manner. I find that the applicant’s testimony on its own without contemporaneous evidence in support of her claim is not compelling evidence to satisfy her onus to prove she has a substantial inability to complete housekeeping and home maintenance services during the 104-week claim period.

28As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities or with contemporaneous evidence of a substantial inability to perform housekeeping and home maintenance services.

Issue II: Applicant is not entitled to an Income Replacement Benefit

29I find that the applicant is not entitled to an IRB for the following reasons.

30The applicant’s claim for an IRB is from August 2018 and ongoing. The test for a pre-104-week IRB is a substantial inability to perform the essential tasks of her employment. After 104 weeks, the test changes, and in accordance with s. 6(2)(b) of the Schedule, in order to claim an IRB after the 104-week mark, the applicant must show that as a result of the accident, she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

31The applicant relies upon an OCF-3 from Dr. Castiglione from August 14, 2018, however, I note that the OCF-3 actually check marked “No” to the question of whether the applicant has a substantial inability to perform the essential tasks of her employment as a result of the accident and within 104 weeks of the accident, but the OCF-3 check marked “Yes” to the question of whether the applicant can return to work on modified hours and/or duties.

32The applicant submits that she attempted to return to work as best as possible on modified duties in August 2018 but had to quit as she was no longer able to handle her duties physically or mentally even with accommodations. In support of her submissions and testimony she relies upon the updated OCF-3 of Dr. Chiavaroli, who check-marked “Yes” to the question of whether the applicant has a substantial inability to perform the essential tasks of her employment, and the reports of Dr. Jha and occupational therapist, Heather Pickin as discussed above in her claim for a housekeeping and home maintenance benefit. The applicant also relies upon an accounting report from S&T Accounting Firm to calculate the IRB quantum.

33However, before the IRB quantum can be considered the applicant must prove on a balance of probabilities that she has a substantial inability to perform the essential tasks of her employment for the pre-104-week IRB. I am not persuaded that she has.

34The OCF-3 on its own is not compelling evidence in support of a benefit. There must be contemporaneous evidence and other than the applicant’s self-reports and testimony, I am not pointed to contemporaneous medical evidence in support. The report of Dr. Jha confirms that the applicant has a traumatic brain injury; however, there is nothing in the report that outlines what her essential tasks are and how the applicant is unable to substantially perform those tasks as a result of her traumatic brain injury. Furthermore, the report of Dr. Jha is past the pre-104-week claim period.

35The report of Heather Pickin is dated March 18, 2021, and is also past the pre-104-week mark and does not support the applicant’s claim that she has a substantial inability to carry on the essential tasks of her employment which is contemporaneous to her claim for an IRB.

36The applicant relies upon case law⁴ in support of her position that her impairments are worse than the applicants’ from the case law and therefore she should be entitled to an IRB. In my view, I have no doubt that the applicant has suffered as a result of this terrible accident through no fault of her own. However, there must be contemporaneous evidence in support that her impairments prevent her from substantially performing the essential tasks of her employment. As mentioned earlier, I find that the OCF-3 is not compelling evidence on its own and the reports being relied upon are past the pre-104-week mark and are therefore, in my opinion, of limited assistance in determining whether she has a substantial inability to perform the essential tasks of her employment.

37Because the applicant has not satisfied her onus to prove she is entitled to a pre-104-week IRB, she is therefore not entitled to claim a post-104-week IRB. Even if I were to find that the applicant met the substantial inability test to claim a pre-104-week IRB, I find that the evidence the applicant relies upon does not support a claim that she has a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.⁵ Therefore, I find that the applicant’s evidence does not support her claim for a post 104-week IRB.

Issue III: The respondent is not entitled to a repayment of the Income Replacement Benefit

38The onus on a repayment claim is on the respondent and the respondent did not provide any submissions or evidence in support of a repayment of the IRB and therefore, I find that the respondent is not entitled to an IRB repayment in the amount of $775.62.

ORDER

39The applicant is not entitled to housekeeping and home maintenance expenses.

40The applicant is not entitled to an income replacement benefit.

41The respondent is not entitled to an IRB repayment and;

42Since there are no benefits owing, the applicant it not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2See s. 28(1) 2.ii.
3. 32020 CanLII 34421 (ON LAT)
4. 4B.L.J. v The Co-Operators Insurance Company, 2020 CanLII 107733 (ON LAT); N.F. v Aviva Insurance Canada, 2020 CanLII 61453 (ON LAT);
5. 5See section 6(2)(b) of the Schedule.