Citation: Mahadevan v. Aviva Insurance Company, 2022 ONLAT 19-009656/AABS

Licence Appeal Tribunal File Number: 19-009656/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:

Niranjini Mahadevan

Applicant

And

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Niranjini Mahadevan, Applicant

Peter Cimino, Counsel

For the Respondent:

Arsheena Harripaul, Adjuster

James Kolumbus, Counsel

Court Reporter:

Giles Tingey

HEARD: by Videoconference:

February 22, 2022

OVERVIEW

1Niranjini Mahadevan (the “applicant”) was involved in an automobile accident on January 11, 2018, and sought benefits from Aviva Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a videoconference hearing but were unable to resolve the issues in dispute. The matter proceeded to a half-day videoconference hearing on February 22, 2022, where I heard the testimony of the applicant.

ISSUES[^2]

3I have been asked to decide the following issues:

a. Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from March 22, 2019 to date and ongoing?

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

RESULT

4After considering both parties submissions and all of the evidence, I find the applicant is not entitled to payment of a NEB for the time period claimed or interest.

BACKGROUND

5On January 11, 2018, the applicant was a pedestrian who was hit by a car turning into a parking lot. She submits that the impact made her fall backwards onto her left side. As a result of the accident, the applicant fractured her left wrist and has been diagnosed with soft tissue injuries and a psychological impairment.

ANALYSIS

Is the applicant entitled to a NEB in the amount of $185.00 per week from March 22, 2019, to the two-year mark?

6The applicant is not entitled to payment of a NEB for the time period claimed.

7Section 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. Section 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. Economical³, which focuses on a comparison of the applicant’s pre-and post-accident activities.

8In support of her claim for a NEB, the applicant relies on the OCF-3 of Dr. Millen, chiropractor, dated January 18, 2018, which supports that she had a complete inability to carry on a normal life as a result of the accident. She also relies on the clinical notes and records (CNRs) of Dr. Thamotharam, family doctor, and Dr. Majl, treating neurologist, and the report of Dr. Steiner, psychologist, dated July 12, 2018.

9The respondent argues that the applicant is not entitled to the NEB for the time-period claimed as the evidence supports that she had a significant pre-accident medical history. It submits that many of the applicant’s impairments (such as chronic migraines and back pain) existed before the accident. It also maintains that the applicant’s testimony and self-reports are not reliable because there is a pattern of inconsistency in her self-reports about her medical status and functional limitations throughout the evidentiary record. It relies on the pre- and post-accident medical records of the Scarborough General Hospital, Dr. Thamotharam and the IE report of J. Duong, occupational therapist, dated July 3, 2019. For the following reasons, I agree with the respondent.

10As set out in Heath, the first step in determining whether an individual qualifies for a NEB is to compare their pre- and post-accident activities of daily living. The applicant testified that prior to the accident, she was in good health and worked as an administrator for a pharmaceutical company. She was independent in her self-care and activities of daily living. The applicant was single and lived with her elderly parents whom she was responsible for looking after as she did most of the cooking, cleaning and would take her mother to medical appointments. She had lots of friends and had a good relationship with her sister, niece, and nephew. She enjoyed recreational activities such as swimming, badminton, fishing, camping and cottage trips.

11The applicant testified that her life drastically changed post-accident as from March 2019 to January 2020 she did nothing. She is no longer able to care for her parents. She is socially withdrawn from her friends and spends most of her time lying in bed alone. She will only see friends if they come to pick her up. Further, she no longer participates in any of the recreational activities that she enjoyed pre-accident. In addition, she testified that she returned to work for one week in March 2018 but has not returned since.

12I find that the applicant’s testimony was contradicted by the evidence before me. The applicant is a bad historian and I do not find her to be a credible witness. The areas of inconsistency can be broadly categorized as her pre- and post-accident employment, her medical/health status pre-accident and immediately after the accident, and her post-accident life. The following are some examples of the many discrepancies in her reports about her pre-and post-accident employment.

a) Pre-accident reports and CNRs of Scarborough General Hospital note that the applicant worked in administration. In her application for accident benefits dated January 22, 2018, it notes that she had been employed at McKesson (a pharmaceutical company) since 2008.

b) A disability certificate (OCF-3) dated January 18, 2018 prepared four days prior indicates that she was working as a caregiver at the time of the accident.

c) A letter to Dr. Thamotharam from Dr. Hurowitz dated April 4, 2018, notes that the applicant had been holding down a full-time job at McKesson Pharmaceutical.

d) A hospital record dated May 10, 2018, notes that she had chest pain while working on a presentation at the office.

e) In the In-Home IE of J. Duong, occupational therapist dated July 3, 2018, the applicant reported being unemployed at the time of the accident as she was helping at her aunt’s engraving centre. Later in the report it states that post-accident she returned to admin work at Hudson Bay headquarters for one week in May 2018 and has not returned to work since.

f) The psychological report of Dr. Steiner dated July 12, 2018, states that in May 2018, the applicant started working as an administrator in a contract position at Sick Kids Hospital. She works Monday, Wednesday and Friday and takes time as needed.

g) A CNR of Dr. Sze dated April 29, 2021, notes that the applicant started working for a real estate company in February 2020 but stopped in May 2020 because of Covid.

13While I acknowledge that a person’s memory is not perfect, based on the above I do not accept the applicant’s testimony about her pre- and post-accident employment activities. Further, it is unclear why the applicant is claiming a NEB if she qualified for an income replacement benefit. Neither party made submissions on this so I will not address this argument further. No employment documents were submitted to support the applicant’s pre- or post-accident employment status. Further, I did not find the applicant’s testimony helpful in providing clarity. In my view, the fact that the applicant reported to certain assessors that she continued to work post-accident does not support that she suffers a complete inability to carry on a normal life as a result of the accident.

14I also find the applicant’s testimony about her pre-accident medical history to be unreliable. Under cross-examination she was asked about various pre-accident slip-and-falls and hospital admissions. The applicant denied various incidents which were clearly reflected in the medical record. In my view, there was no reason for her to deny these incidents. The applicant also inconsistently reported the accident details to assessors as the reports indicate that she lost consciousness, blacked out and woke up in the hospital. However, the ambulance and hospital reports from the date of the accident specifically indicate no loss of consciousness. In the ambulance call report, police describe the applicant ambulating at the scene.

15The applicant was also inconsistent in reporting details about her post-accident life. The medical records from 2016 and 2017 note that she had been under significant stress because she had an abusive husband which led to divorce. As of the time of the accident, the applicant was single and lived with her elderly parents. However, in Dr. Steiner’s report she stated that she fights with her husband as a result of the accident. This makes little sense and is another example of the applicant’s poor credibility. Her testimony about doing nothing between March 2019 and 2020 was also not accurate with what the applicant reported to medical assessors as the reports note that she would go for walks with her father and was doing aquafit and yoga. She has also socialized post-accident.

16I also do not find the medical evidence persuasive. While the OCF-3 supports that the applicant meets the disability test, I do not find the report of Dr. Steiner persuasive. Dr. Steiner diagnosed the applicant with Posttraumatic Stress Disorder, Major Depressive Disorder and Specific Phobia, Situational. In my view, the doctor heavily relied on the applicant’s self-reports which I do not find credible, and the functional limitations reported were inconsistent with the record before me. Further, the only medical record Dr. Steiner reviewed in completing the assessment was the OCF-3. Finally, Dr. Majl and Dr. Thamotharam’s CNRs may highlight the applicant’s complaints about pain but they do not note that she has any functional limitations as a result. In my view, these CNRs are in-line with the report of J. Duong which did not note any limitations that would prevent the applicant from carrying out her daily activities. As a result of the many inconsistencies in the evidence that the applicant advances in her case, she has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life as a result of her accident-related injuries for the time period claimed.

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

17Section 51 (1) of the Schedule states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that no payments are overdue, the applicant is not entitled to interest.

ORDER

18For all of the above reasons, the applicant is not entitled to a NEB or interest. This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.
3. 2At the hearing, the applicant withdrew Issues 2 and 3 as listed on the Tribunal’s case conference report and order dated February 2, 2022.