Licence Appeal Tribunal File Number: 20-004805/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:
RANA NOUR EDDINE
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION
VICE-CHAIR:
Lori Marzinotto
APPEARANCES:
For the Applicant:
Rana Nour Eddine, Applicant
Mark Stoiko, Counsel
For the Respondent:
Karla Cronoro, Adjuster
Julianne Brimfield, Counsel
Arijana, Schrauwen, Counsel
Interpreter:
Lina Amin, Arabic Language
Court Reporter:
Amy Faria
HEARD: by Videoconference:
July 21, 22, 23, 2021
BACKGROUND
1The applicant was involved in an automobile accident on April 27, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
ISSUES
2The issues in dispute from the Case Conference Report and Order for the case conference held on October 1, 2020 was reviewed with the parties to confirm the issues in dispute. The issues have been amended since the case conference and the parties agreed on the remaining issues in dispute.
3I confirm that the issues in dispute for the hearing are as follows:
a) Is the applicant entitled to a non-earner benefit of $185.00 per week from February 15, 2020 to April 26, 2021?
b) Is the applicant entitled to $3,558.05 for chiropractic services recommended by Spinetec Health Care Solutions in a treatment plan (OCF-18) submitted on May 17, 2019 and denied on June 3, 2019?
c) Is the applicant entitled to $710.00 for assistive devices recommended by Spinetec Health Care Solutions in a treatment plan (OCF-18) submitted on August 29, 2019 and denied on September 16, 2019?
d) Is the applicant entitled to $2,680.00 for physiotherapy services recommended by Spinetec Health Care Solutions in a treatment plan (OCF-18) submitted on March 24, 2020 and denied on April 6, 2020?
e) Is the applicant entitled to $122.20 for physiotherapy services ($1,385.00 less $1,262.80 approved) recommended by Spinetec Health Care Solutions in a treatment plan (OCF-18) submitted on July 24, 2019 and denied on May 6, 2020?
f) Is the applicant entitled to $2,806.00 for an in-home assessment and Form 1 recommended by Meditecs in a treatment plan (OCF-18) submitted on March 24, 2020 and denied on April 6, 2020?
g) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
h) Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
4Based on the evidence before me, I find that the applicant is not entitled to any of the issues in dispute. The applicant has not met her onus to prove entitlement to the benefits. There was a lack of medical evidence or corroborating evidence to support the applicant’s case.
ANALYSIS
5The applicant was the seat-belted driver of a minivan. Her husband was a passenger in the vehicle. Her vehicle was struck from behind while stopped at a red light. The airbags did not deploy and she did not lose consciousness. Police and paramedics attended the scene but a friend picked her and her husband up and they went home.1
a) NON-EARNER BENEFIT
6The test for entitlement to a non-earner benefit (NEB) is set out in s.12(1) of the Schedule. The applicant must prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.
7Section 3(7)(a) of the Schedule states that a person suffers from a complete inability to carry on a normal life if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engages before the accident.
8“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”2 I agree with that interpretation and apply it here.
9As the Court of Appeal for Ontario held in Heath v. Economical Mutual Insurance Company3:
…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.
10Paragraph 50 of Heath outlines several principles for the determination of entitlement to NEBs as follows:
(i) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;
(ii) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;
(iii) 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;
(iv) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);
(v) “engaging in” should be interpreted from a qualitative perspective, such that 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” that activity; and,
(vi) 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. The focus should not be on whether the applicant can perform those activities.4
11The respondent submits that the applicant has not met the stringent test to be entitled to NEB.
12I agree with the respondent. Based on the evidence before me, I find that the applicant did not suffer from a complete inability to carry on a normal life as a result of, and within 104 weeks of the accident, and therefore she is not entitled to a weekly NEB in the amount of $185.00 for the period of February 15, 2020 to April 26, 2021.
13Dr. Reis provided an insurer’s examination (IE) psychology evaluation dated April 14, 2021 and addressed the NEB benefit.5
14In terms of her daily tasks, the applicant indicated to Dr. Reis that she finds it difficult to cook and clean but that she is able to complete these tasks with additional time, breaks and assistance when needed. She indicated that she used to exercise frequently but has been unable to since the accident because of a combination of pain, psychological difficulties and has little energy or interest.6
15Subjective complaints described to Dr. Reis were:
i) Lower back pain, predominantly on the left side, which is aggravated by bending, lifting and twisting;
ii) Headaches that are sometimes combined with dizziness, nausea;
iii) Sensitivity to light and noise;
iv) Sleep difficulties;
v) Depressive moods; and
vi) Driving anxiety.
16Dr. Reis diagnosed the applicant with major depressive disorder with anxious distress and driving phobia and opined that her psychological injuries fall outside of what is considered to be a minor injury.7
17From a psychological perspective, Dr. Reis found that the applicant does not suffer a complete inability to carry on a normal life.
18The applicant’s evidence about her pre- and post-accident activities was inconsistent and uncorroborated in the hearing.
19The applicant testified that, pre-accident, she used to do a lot of activities with the family; for example, basketball, soccer, swimming at a community centre and going to the park. She testified that since the accident she can only do 5% of what she used to do.
20On cross-examination when asked if she used to play these sports, the applicant clarified that other than swimming, she did not play these sports but would watch her husband play. Even the fact that the applicant engaged in swimming in outdoor pools prior to the accident was called into question.
21The applicant indicated that she swam in outdoor pools before the accident. When it was pointed out that the accident occurred in April 2019 and that she had only been in Canada for 6 months and arrived during winter, she was asked how she could have swam outside. The applicant understood the question and, in her answer, asked what the problem was and added that it had not been a very bad winter.
22The applicant indicated that, pre-accident, she liked to travel to Turkey and “back home” (Lebanon), and would go to places in Ontario such as Montreal, Toronto and Niagara Falls but that this was more difficult now because she cannot sit for long periods of time.
23However, in cross-examination, it became clear that the applicant has still been able to travel after the accident and confirmed that in September 2019, she took a trip to Lebanon which she indicated was for treatment and not to visit family. Although not exactly sure, she believed the flight to be 10 (ten) hours. A 10 hour flight is inconsistent with not being able to travel and sit for long periods of time. She confirmed that she did not tell her treatment providers in Canada that she was seeking treatment in Lebanon.
24The applicant further testified that she no longer socialises by having people over to the house because it is too hard to be hospitable and they ask too many questions.
25Since the accident, the applicant testified that a friend helps her cook, clean and complete laundry and comes 2-3 times per week. The applicant testified that her friend started coming over 6 months after the accident and continued to attend even after the COVID-19 pandemic started. The applicant would not provide her friend’s name or any other details and would not even confirm if her friend lived on her street. Later, during cross-examination, the applicant indicated that her friend came “all of the time” and indicated that the friend comes “every day” for 2-3 hours. I note that was not consistent with the applicant’s evidence in chief. The applicant’s inconsistent evidence raised the need for corroboration; however, the friend also did not testify and therefore there is no corroborating evidence that she requires this level of assistance.8
26The applicant also confirmed that she can cook while sitting but “not for long”.
27When questioned why the friend started coming 6 months after the accident, the applicant answered that the pain was not as severe for the first 6 months.
28The applicant takes Tylenol for her headaches but does not take any other pain medication because she is pregnant (at the time of the hearing, the applicant was 8 months pregnant but admitted to taking only Advil before she became pregnant and did not take medications for any psychological issue). Based on the prescription summaries,9 the applicant did not fill any prescriptions for pain medication.
29She was receiving chiropractic treatment and physiotherapy but stopped because of financial reasons and her pregnancy.10
30The applicant testified that Dr. Dharamshi, a physician who conducted an IE, asked her if she was able to do activities around the house but he did not ask about particular activities. I note that Dr. Dharamshi was not asked to comment on the NEB benefit. The NEB benefit entitlement question was posed to Dr. Reis.
31Dr. Dharamshi’s report indicates that the applicant reported that she is able to manage her self-care activities but has a lot of difficulties. During his physical examination, the applicant did not demonstrate any discomfort while sitting through the 45 minute interview. Although the applicant reports that she has difficulties with almost all of her pre-accident activities of daily living, the physical examination showed signs of myofascial injuries to the cervical spine, left shoulder and lumbosacral spine.
32Dr. Dharamshi opined that there were no musculoskeletal impairments and that the applicant’s reduced range of motion was secondary to pain limitation and voluntary guarding. Dr. Dharamshi opined that she does not suffer a complete inability to carry on a normal life from a musculoskeletal perspective.
33Based on the uncorroborated and inconsistent evidence of the applicant and the medical evidence, the applicant has failed to meet her onus of proving on a balance of probabilities that she suffers a complete inability to carry on a normal life as a result of the accident.
ISSUES (b) – (e) TREATMENT PLANS (b) Chiropractic Services $3,558.05 (c) Assistive Devices $710.00 (d) Physiotherapy $ 2,680.00 (e) Physiotherapy $122.20 ($1,385.00 less approved $1,262.80)
34Sections 14-16 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that each assessment and treatment plan is reasonable and necessary. The applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
35Despite my clear indication that documents in the applicant’s and respondent’s document briefs are not automatically admitted in evidence and that if the parties want a particular document to be admitted, they must direct me to the document, none of the treatment plans in dispute were put before me and entered into evidence.
36Depite not having the treatment plans before me, I have considered all of the testimony of the witnesses and the documents that have been entered as exhibits in order to determine whether the applicant is entited to the benefits at issue.
37The applicant testified as did three doctors on her behalf. The respondent did not call any witnesses and relies upon the IE report of Dr. Dharamshi dated February 11, 2021.11 The parties agreed to proceed in this manner and Dr. Dharamshi’s medical report was entered as exhibit #1.
38The applicant’s injuries were originally considered to be in the Minor Injury Guideline. Although the applicant’s psychological injuries fall outside of the Minor Injury Guideline,12 the respondent maintains its position that the applicant suffered minor soft tissue injuries as a result of the accident. This is consistent with Dr. Dharamshi’s report.
39Dr. Dharamshi’s medical report opined, from a musculoskeletal perspective, on several treatment plans including the treatment plan for chiropractic services (issue b), two treatment plans for physiotherapy (issues d & e) and the treatment plan for assistive devices (issue c) and whether the applicant’s injuries were within the Minor Injury Guideline.
40Dr. Dharamshi concluded that the chiropractic treatment plan, the assistive devices treatment plan and the physiotherapy treatment plans are not reasonable and necessary. He concluded that the applicant had reached maximum medical recovery from facility based treatement.13
41In December 2020, Dr. Paton, Chiropractor, diagnosed the applicant with:
i) “persistent post-concussion symptoms (this should be confirmed by her family MD) with positive findings during the vestibular-ocular-motor screen”;
ii) Chronic Grade II neck pain & Cervico-Thoracic spine pain syndrome; and
iii) Chronic Mechanical low back pain and suspected lumbar disc irritation with recurrent referral pain to her bilateral thighs;14
42Dr. Paton indicated that the treatment of the applicant has been relatively the same since he started treating her.
43Although Dr. Paton’s note of January 9, 2020 indicated chronic pain syndrome, he indicated in cross-examination that he cannot diagnose chronic pain syndrome and thought he diagnosed the applicant with chronic low back pain; he described “chronic” as pain that has been on-going for 6 months.
44The applicant admitted that the chiropractic treatment was of limited benefit. She explained that it helped with 50% of the pain but the pain came back after 24 hours. She further admitted that the treatment did not help her to complete household activites. Given the above, I do not find the chiropractic treatment plan to be reasonable and necessary.
45Turning to the physiotherapy treatment plans, the applicant relied on the evidence of Dr. Wadood, Physiotherapist. I did not give much weight to Dr. Wadood’s evidence. The treatment notes (or “Soap Notes”) are questionable. They are essentially copies of each other as I will explain later.
46Dr. Wadood first saw the applicant in May 2019 and treated her until September 2019. She had pain in her neck, both shoulders and back and legs. At the time of the first visit, the applicant reported numbness in both hands, had frequent headaches and dizziness, and had sleep disturbance due to pain. In May 2019, Dr. Wadood noted that the applicant’s cervical and lumber spine movements were painful and restricted.15
47Dr. Wadood treated her approximately two times per month. He reported that the applicant indicated that after treatment there was pain relief in her neck and back but lasted for only a few hours. She did not receive any functional benefit from the treatment. Dr. Wadood testified that he did not observe any improvements and attributed that to her infrequent visits.
48Dr. Wadood indicated that there was an aggravation and exacerbation of her symptoms as documented in the Soap Notes. The SOAP Notes of June 10, 2019, June 17, 2019, June 27, 2019, July 18, 2019, August 15, 2019, August 22, 2019, August 29, 2019 and September 5, 2019, are copies of each other with the exception of the treatment date.16
49There are two notes for August 22, 2019. This does not appear to be a typographical error because they are indicated as visit 7 and visit 8. Again, they are simply reproductions of the earlier notes.17
50They list the same findings and provide the same treatment. There was no change in her condition and no change in the treatment over time.
51The notes of Dr. Wadood demonstrate that treatment was not improving the applicant’s condition. It is not reasonable and necessary to continue with such treatment under those circumstances.
52The applicant’s family doctor, Dr. Satbir Singh, testified that he diagnosed the applicant with whiplash, migraines, backpain and possible PTSD. He did not diagnose the applicant as having a concussion. He prescribed Celebrex (muscle relaxant). He indicated that most patients with back pain have back spasms, so muscle relaxants are prescribed. He did not prescribe her Percocet.
53Dr. Singh did not document any of the applicant’s functional restrictions and does not remember telling her to avoid certain activities. In December 2020, the applicant described her headaches to Dr. Singh as “on and off” and “no throbbing pain, more of a dull pain”. There were no notations of any physical pain in the December 2020 note18 compared to the earlier February 2020 note, which indicated the applicant still has “some back and left shoulder pain.”19 A November 2020 note indicates that the applicant has back pain once per week. Dr. Singh could not remember if the applicant ever gave him an indication that her back pain went away since the accident.
54Dr. Singh testified that in the year after the accident, he saw the applicant multiple times for non-accident-related issues. He confirmed that if the accident was not mentioned in his notes and records then it was accurate to say that the accident was not brought up during those visits.
(c) Assistive Devices
55I find that the applicant is not entitled to the treatment plan in the amount of $710.00 for assistive devices. The applicant has not proven entitlement to the benefit on a balance of probabilities.
56I do not know what assistive devices were recommended, why they were recommended or how they would assist the applicant and am therefore unable to find the treatment plan reasonable and necessary.
(f) In-home Assessment and Form 1
57I find the applicant is not entitled to the in-home assessment. The applicant has not proven entitlement to the benefit, on the balance of probabilities.
58I do not have evidence with respect to this treatment plan and therefore cannot order it to be paid.
(g) & (h) Award and Interest
59As there are no benefits that are overdue, no interest or award are payable.
CONCLUSION
60For the reasons found above, I find that the applicant is not entitled to any of the benefit sought in the listed issues in dispute. As no benefits are owing, neither interest nor an award are payable. I dismiss the application.
Released: March 16, 2022
Lori Marzinotto
Vice-Chair
Footnotes
- Exhibit #20, Respondent’s Document Brief, Tab 21.
- 16-003195 v. State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10, as cited in S.E. v. Gore Mutual Insurance Company, 2019 CanLII 43887 (ON LAT) Respondent’s Book of Authorities, Tab 4.
- Health v. Economical Insurance, 2009 ONCA 391.
- Respondent’s Brief of Authorities, S.E. v. Gore Mutual Insurance Company, 2019 CanLII 43887 (ON LAT) citing Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para. 50
- Exhibit #20, Respondent’s Document Brief, Tab 21. This report also addressed two chiropractic treatment plans; however, those treatment plans are not in dispute at this hearing.
- Exhibit #20, Respondent’s Document Brief, Tab 21.
- Exhibit #20, Respondent’s Document Brief, Tab 21 (161/187)
- I note that applicant’s counsel asked a significant number of leading questions to which respondent’s counsel objected. I agreed that applicant’s counsel was asking leading questions and cautioned him.
- Exhibit #5 and Exhibit #6 Applicant’s Document Brief Tab 11 and Tab 12.
- Exhibit #20, Respondent’s Document Brief, Tab 21.
- Exhibit #1, Respondent’s Document Brief, Tab 19.
- When confirming the issues in dispute prior to the commencement of the hearing, I was advised that the issue of whether the applicant’s injuries were within the Minor Injury Guideline (“MIG”) had been resolved and that her injuries were no longer considered to be minor. During closing submissions, applicant’s counsel submitted that the applicant’s injuries were no longer considered minor due to the applicant’s psychological issues and referred to a letter from the respondent removing the applicant from the MIG dated April 21, 2021 (Applicant’s Document Brief at Tab 17). I note that this letter has not been entered as an exhibit and therefore not in evidence.
- Exhibit #1, Respondent’s Document Brief, Tab 19.
- Exhibit #4, Applicant’s Brief Tab 16 (p.273/274)
- Exhibit #8, Applicant’s Brief Tab 14
- Exhibit #10, Applicant’s Document Brief, Tab 16.
- Exhibit #15, Applicant’s Document Brief, Tab 16, p. 254, 255.
- Exhibit #16, Applicant’s Document Brief, p. 151.
- Exhibit #2, Applicant’s Document Brief, Tab 141.