Licence Appeal Tribunal File Number: 20-006389/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:
Cordelia (Gabrielle) Brenner
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant: Simmy Yu, Counsel
For the Respondent: George Poirier, Counsel
HEARD: In Writing by way of written submissions
BACKGROUND
1The applicant was first injured in an automobile accident on October 13, 2013, when she was 12 years old. As she was not entitled to receive Non-Earner Benefits (“NEBs”) under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”) until she turned 16, the applicant applied for and began receiving payment for NEBs from the respondent, TD, on May 23, 2017 at the rate of $320 per week.
2The applicant was involved in a second accident on May 31, 2018, while NEBs were still being paid in relation to the first accident. TD paid NEBs for the first accident before terminating the benefit effective July 4, 2018, based on the results of s. 44 Insurer’s Examinations (“IEs”).
3However, at the same time, TD then began paying the applicant NEBs for the second accident at the rate of $185 per week and continued to pay NEBs up to the full two-year limit provided by the Schedule. The applicant disputed the termination of her NEBs under the first accident and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
4The following issues are in dispute:
i. Is the applicant entitled to receive NEBs in the amount of $320 weekly for the period of July 4, 2018 to date and ongoing, submitted May 23, 2017, and denied by the respondent on June 21, 2018?
ii. Is the applicant entitled to interest on overdue payment of benefits?
iii. Is the applicant entitled to an award under s. 10 of O. Reg. 664 due to the respondent unreasonably withholding or delaying payment of benefits?
RESULT
5The applicant is entitled to NEB payments in the amount of $320 per week for the period of July 4, 2018 to October 31, 2019, as she continued to have a complete inability to carry on a normal life as a result of the 2013 accident during this time. Interest applies on the payment of overdue benefits pursuant to s. 51. I decline to order an award under s. 10 of O. Reg. 664.
ANALYSIS
NEB
6Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for income replacement or is a student or recent graduate at the time of the accident.
7Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 which, generally, requires a comparison of the applicant’s pre- and post-accident activities. The applicant bears the burden of demonstrating that the NEB test is met.
Positions of the parties
8As a result of the October 13, 2013 accident, the applicant sustained a laceration and injury to her head, resulting in a traumatic brain injury, jaw injury and dislocation, and injury to her back, requiring a fitted back brace. She submits that she continues to suffer from severe migraines and various cognitive and psychological issues since this first accident and remained under the care of various practitioners at the time of the second accident.
9Following the second accident, the applicant submits that her treating care team did not change and that the accident caused an exacerbation of the same symptoms from the first accident. She submits that but for the occurrence of the first accident, she would not have sustained her impairments and would not have been entitled to NEBs as a result of her impairments from the second accident.
10The applicant submits that by switching payment of NEBs after the second accident, TD concedes and accepts that she continued to have an impairment that meets the NEB test. In turn, the applicant submits that the consequences of that decision are significant to her. Where her first accident occurred under the older 2013 Schedule, there is no applicable time limit to which NEBs can be paid, so long as the test continues to be met. In this vein, she asserts that it was strategic and beneficial for TD to pay her NEBs in this way under the second accident because, pursuant to the version of the Schedule in place at that time, payment would be $185 per week and would be capped at two years.
11Further, the applicant asserts that she would not have qualified for NEBs under the second accident. She submits her impairments stemmed from the first accident and there is no evidence suggesting her activity level changed in any manner to trigger NEB entitlement under the second accident, which she submits was minor. The applicant points to the large existing treatment team she had managing her impairments from the first accident, which occurred 4.5 years prior, right up to the time of the second accident (which occurred on her way home from an IE for the first accident). Finally, she submits that there was no proper medical stoppage of her NEBs, which were paid up until two years after the second accident before being terminated on May 31, 2020, as a result of the limitations under the Schedule that, according to her, TD improperly took advantage of.
12In response, TD asserts that the records demonstrate that the applicant’s condition had improved considerably by 2018. It relies on three 2018 s. 44 IE reports that found the applicant did not meet the NEB test: physiatrist Dr. Millard, where the applicant reported independence with personal care, half of her household tasks and was taking ballet, with no musculoskeletal or neurological impairments; a s. 44 occupational therapy report by Tovit Rubin where the applicant made similar reports and had transitioned to home schooling; and a s. 44 psychological report by Dr. Lubbers, who diagnosed the applicant with Adjustment Disorder with Anxiety, but felt that she did not meet the NEB test, noting that the applicant confirmed previous reporting and identified other activities she was engaged in such as twice weekly ballet, shopping, camping, hiking and assisting at church.
The applicant’s entitlement
13The applicant submits that her pre-first accident activities included being a full-time student, training to become a competitive gymnast, cheerleading, playing clarinet, swimming and diving and volleyball. She points to her 25% attendance at school in the one-year post-accident and her transition to home schooling thereafter. She submits that she could not do her other activities like gymnastics, cheerleading, swimming and diving to due risk of further head injury, could not play the clarinet due to lack of concentration and focus and could not play volleyball due to pain. She argues that all of the activities she was no longer able to do were activities she could not perform even prior to the second accident.
14She points to her Disability Certificates (OCF-3) dated November 19, 2015 and January 22, 2018, where Dr. Atapattu confirmed that she meets the NEB test due to post-concussion syndrome, chronic pain syndrome, post-traumatic stress and anxiety. Finally, she relies on a physiatry report by Dr. Muniz-Rodriquez dated April 5, 2020, and an occupational therapy/attendant care assessment report by Ms. Legaspi dated October 31, 2019, both of which indicate that the applicant’s impairments result from the first accident.
15I find limited evidence to support TD’s position that the applicant’s second accident led to a complete inability to carry on a normal life. Rather, on review, I find it is clear that the second accident, which was seemingly minor, merely exacerbated her impairments and symptoms from the first accident. While her symptoms from the first accident may have been improving at the beginning of 2018, I agree with the applicant that she was unlikely to qualify for NEB’s on the basis of the impairments she sustained in the second accident. Dr. Lee’s OCF-3 submitted after the second accident indicates that her impairments were only expected to last between one and four weeks and in effect, the applicant’s life did not change following the second accident. Dr. Atapattu’s clinical notes of May 31 and June 7, 2018, indicate that there was no loss of consciousness, no fractures, and only headaches, neck and shoulder pain stemming from the second accident.
16I am unable to accept the conclusions of the 2018 s. 44 IE reports. The reports fail to explain how the assessors determined that the applicant did not meet the NEB test despite having the same treatment team and many of the same limitations over the previous four years, while it was paying NEBs to the applicant under the first accident. The findings of the s. 44 reports were not, in my view, in line with the bulk of the medical evidence or the applicant’s reporting at the time. For TD to then attribute her impairments, which remained largely the same, solely to the minor second accident calls into question TD’s decision to terminate payment for NEBs for the first accident and begin remitting NEB payments for the second accident. Indeed, it appears that TD relied on the second OCF-3 completed by chiropractor Dr. Lee, dated September 10, 2018, who only occasionally treated the applicant but who purportedly had no knowledge of her head injuries.
17There is no shortage of medical evidence in this file and several OCF-3s. The volume of evidence simply does not support a decrease in activities on the basis of the second accident, as TD claims. Indeed, the OCF-3 dated January 22, 2018, supports that she continued to suffer from post-concussion syndrome, chronic pain syndrome, post-traumatic stress and anxiety, all of which were present when TD started paying NEBs and all of which continued to affect her daily activities. Dr. Atapattu’s January 24, 2018 note confirms complaints of post-concussion syndrome, head aches and chronic pain. In this vein, I find it clear that but for the first accident, the applicant would not have met the NEB test in relation to the second accident. I agree with the applicant that by conceding that NEBs were payable, the only logical option was that NEBs were payable due to the first accident.
18This finding is supported by reports prepared well after TD’s decision to assign NEB payments to the second accident after terminating payments for the first accident. For example, the April 2020 physiatry assessment from Dr. Muniz-Rodriguez found that the applicant met the NEB test as a result of her impairments from the first accident. The October 2019 occupational therapy assessment by Ms. Legaspi found that the applicant continued to struggle with some of her activities as a result of the first accident. Notably, TD has not challenged these reports but has since ceased payment for NEBs at the two-year mark post-second accident.
19Beyond these reports, the medical evidence demonstrates that the applicant’s symptoms and impairments were continuous up to and following TD’s 2018 denial pertaining to the first accident. The applicant attended at Holland Bloorview for a consultation one day before the second accident due to ongoing issues with migraines and her scoliosis-related pain. The same note confirms that she was being followed by Dr. Lagman at Women’s College Hospital’s Headache Centre and was still taking various pain medications. In July and October 2018, the applicant was still seeing her neurologist Dr. Lindsay for her chronic headaches.
20In December 2018, the applicant was still attending at Holland Bloorview’s Brain Injury Rehabilitation/Complex Concussion Clinic, which identified a list of eight medications she was currently taking, states that she continued to have sleep issues and weekly headaches reaching 9/10 in severity that are worsened with physical and cognitive activity, light and noise and require her to rest in a dark room. Dr. Ladha referred her for a sleep study for twitching/convulsions and the Get Up and Go chronic pain program at Sick Kids, and provided a plan for her medication regimen, her activities and her ongoing jaw pain.
21In 2019, the applicant began seeing Dr. Kronenberg for outpatient psychiatry sessions. She was still taking five different medications by mid 2019, was scheduled to join the Get Up and Go Program that summer and was seeing her physiotherapist once per month. It appears that she was no longer having sleep difficulties, was participating in dance classes three times per week, hiking for 1-4 hours one to two times per month and going to the gym two times per week. While she was still home schooled, her plan was to take additional courses and attend college for a nursing program. Dr. Ladha’s report indicates that she was more functional on a day-to-day basis.
22On this evidence, it is difficult to afford much weight to the reports relied on by TD from 2018. While I accept that the applicant’s condition was improving in 2018 and into 2019, I do not find that the medical evidence supports a termination of her NEBs at the time TD did, nor do I find medical evidence to support that NEB payments were appropriately reduced to $185 per week based on impairments sustained in the second accident and denied at the two-year mark. This stoppage does not appear to be based on any medical evidence.
23And yet, I agree with TD that the Heath test is difficult to neatly apply on these facts, as the arc of the applicant’s life since the time she was in the first accident in 2013 at the age of 12 to her life after the second accident and to date has changed considerably. Her activities at the time of the first accident as a 7th grade student were gymnastics, cheerleading, clarinet, swimming and diving and volleyball. On the evidence, it is easy to accept that her impairments affected all of those activities and led to her being home-schooled through high school.
24However, on the medical records beginning in 2019, her interests have changed, and it is likely no longer useful to compare her current function or interests to those of her 12-year-old self. For example, according to the reports of Dr. Muniz and Dr. Kronenburg, she has been taking online courses to prepare for her college nursing program and is doing well, she takes dancing classes several times per week, has taken up snowboarding, regularly practices yoga, and has returned to church activities. While her headaches persist and she appears to have fluctuating pain, in September 2019, Dr. Kronenburg specifically notes that the applicant is doing quite well, is generally quite functional and that the applicant has adopted effective strategies for coping with her headaches.
25With Heath in mind, the applicant’s submissions focus largely on her medical treatments to date but do not provide much analysis to support how her impairments currently result in a complete inability to carry on a normal life as an adult. Instead, her submissions refer to those activities that filled her schedule as a 12-year-old, despite the applicant having no interest in them anymore and not providing affidavit evidence to indicate that she would but for her impairments. Her submissions do not identify her most valued activities that her impairments prevent her from participating in and even Dr. Muniz-Rodriguez’s report is somewhat vague in its articulation of the activities the applicant has a complete inability to carry on with.
26As a result, while it is evident that the applicant’s headaches persist and that she continues to take medication, it is equally evident that by the end of 2019 she had learned how to cope with these headaches and is functioning quite well with her approach and strategies of pacing. While the applicant may have lingering pain, she participates regularly in activities she values—dance lessons, yoga, snowboarding, church activities, etc.—and purportedly was on track to begin her college nursing program when submissions were filed. It is difficult to find that a person who is able to dance, snowboard and participate in online schooling is a person who has a complete inability to carry on a normal life.
27In a similar vein, there is no dispute that the applicant performs all her self-care and grooming independently, is able to clean and do laundry for herself, is capable of completing many household tasks, and has obtained her driver’s licence. While Ms. Legaspi’s report was helpful in attributing the applicant’s struggles to the first accident, even she did not go so far as to say that the applicant has a complete inability to carry on a normal life, as the report only details the applicant’s difficulty with some of her activities.
28Accordingly, to borrow from Heath, I cannot find that the applicant’s headaches or pain practically prevents her from engaging in any of these activities on an ongoing basis. While she may have to pace or take breaks, it is apparent that the applicant keeps quite busy with her academic, physical and personal pursuits. Thus, I find it cannot be said that she has a complete inability to carry on a normal life at this stage post-accident. Rather, after years of treatment, investigation and trial and error on coping strategies, it seems that the applicant has adapted to her impairments and is functioning rather well with a full schedule.
29For these reasons, I find it was improper for TD to stop payment for the NEB pertaining to the first accident and attribute payments solely to the second accident, as the medical evidence supports that the applicant had and continued to have a complete inability to carry on a normal life past the denial date and into the fall of 2019 when Ms. Legaspi’s report was created and where Dr. Kronenburg’s observations were made.
30However, in my view, the applicant has not demonstrated that she continues to have a complete inability to carry on a normal life on an ongoing basis. The more recent evidence from late 2019 to date supports that she is now an adult with various interests who is functionally capable of doing many engaging physical and cognitive activities and has developed coping strategies to alleviate her lingering symptoms. On this basis, I find that the applicant no longer met the NEB test as a result of the 2013 accident as of the October 31, 2019 report prepared by Ms. Legaspi. In my view, I find this date reasonably accounts for the applicant’s subjective reporting and the opinions of Dr. Ladha, Dr. Kronenburg and Ms. Legaspi while providing some treatment distance from the s. 44 reports that failed to account for the applicant’s struggle.
31Having determined that the applicant’s entitlement to an NEB can be traced to the first accident in 2013 and not the minor second accident in 2018, it follows that the applicant is entitled to payments in the amount of $320 per week for the post-denial period, being July 4, 2018 to October 31, 2019 as she continued to have a complete inability to carry on a normal life as a result of the accident during this time. Interest applies on the payment of overdue benefits for this period, pursuant to s. 51.
Award
32The applicant also sought an award pursuant to s. 10 of O. Reg. 664, arguing that TD’s conduct in accepting her qualification for NEB, but choosing the second accident to limit the duration and quantum of payment is an unreasonable withholding of benefits. The Tribunal assesses an award based on whether the insurer’s behaviour is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate,” and may award up to 50% of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed benefit payments.
33I find an award is not appropriate. While I am alive to the applicant’s submissions, I find the NEB was initially terminated based on three s. 44 IE reports conducted before the 2018 accident. TD then paid the NEB for the second accident based on the OCF-3 prepared by Dr. Lee. While there was a financial advantage to the insurer as a result of this decision due to the change in legislation, I find no evidence to support that it was a decision made in bad faith by TD. Where TD funded the NEB for the 2018 accident until the two-year stoppage, I cannot find its behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
ORDER
34The applicant is entitled to NEB payments in the amount of $320 per week for the period of July 4, 2018 to October 31, 2019, as she continued to have a complete inability to carry on a normal life as a result of the 2013 accident during this time. Interest applies on the payment of overdue benefits pursuant to s. 51.
35I decline to order an award under s. 10 of O. Reg. 664.
Released: March 11, 2022
Jesse A. Boyce
Vice-Chair