Citation: Griffith-Reid v. Aviva Insurance Company, 2022 ONLAT 20-006934/AABS

Licence Appeal Tribunal File Number: 20-006934/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:

Shernell Griffith-Reid

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Kateryna Vlada, Paralegal

For the Respondent: Catherine Zingg, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant Shernell Griffith-Reid (the “Applicant”) was involved in a motor vehicle accident on August 12, 2017. She seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2At issue between the parties are the Applicant’s entitlement to non-earner benefits and her claims for two proposed treatment plans. The respondent, Aviva Insurance Company (the “Respondent”), denied the Applicant non-earner benefits on the basis that she does not suffer from a complete inability to carry out the activities of her daily life. The Respondent denied the proposed treatment plans on the basis that they were not reasonable and necessary.

3The Applicant argues that (a) she is entitled to the non-earner benefit because she cannot carry out the activities of her daily life in the way that she used to before the accident; and (b) the proposed treatment plans are reasonable and necessary to treat her back and shoulder injuries arising from the accident.

ISSUES

4The issues to be decided are:

a. Is the Applicant entitled to a non-earner benefit of $185.00 per week from June 10, 2018 to August 12, 2019?

b. Is the Applicant entitled to a medical benefit in the amount of $3,948.91 for a chiropractic treatment, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated April 26, 2018?

c. Is the Applicant to a medical benefit in the amount of $3,191.25 for chiropractic treatment, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated September 20, 2018?

d. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that, for the reasons below, the Applicant has not met her onus to prove, on a balance of probabilities, that (a) she is entitled to non-earner benefits during the period at issue; and (b) the proposed treatment plans are reasonable and necessary.

BACKGROUND

6On August 12, 2017, the Applicant was the passenger in the backseat of her husband’s car. At an intersection, the Applicant’s car collided with another car. Though there is conflicting information about whether the airbags deployed, the Applicant’s car was later written off.

7Emergency personnel who attended the scene examined the Applicant and advised her that she may have suffered a concussion. She was then taken to the nearest emergency department. Again, while the emergency physicians suspected a concussion, they did not formally diagnose her. I note that the ER record reports that the Applicant “gently” hit her head. The Applicant was pregnant at the time of the accident and was not prescribed medication. She also was not covered by OHIP, as she had not yet become a permanent resident. The $840.00 hospital bill was deducted from her Minor Injury Guideline (“MIG”) limit of $3,500.00.

8The Applicant saw her family health care provider a few days after the accident, who diagnosed her with a concussion, and noted that the Applicant was worried for the unborn child because she was experiencing cramps. In subsequent visits, the Applicant reported low back pain, and was prescribed medication and other mitigating modalities. The primary health care provider’s records also show that within a few weeks of the accident, the Applicant reported that her headaches had resolved, though during a section 44 examination in early April 2018 the Applicant reported headaches a few times a week.

9At her examination under oath (“EUO”) held on December 21, 2017, the Applicant reported experiencing headaches several times a week, along with occasional dizziness, tinnitus, and blurred vision. She also described her typical day and activities both before and after the accident.

10Shortly after the accident the Applicant began receiving physical therapy, chiropractic, and massage therapy care. In some instances she reports some relief from her symptoms as a result of treatment, and in other instances she states that some of her pain has not improved at all.

11In April 2018, the Applicant’s submissions and emergency hospital records indicate that the Applicant suffered what appears to be a stroke, or a transient ischemic attack. The evidence suggests that the Applicant’s neurological and psychological health suffered after this incident. For example, she reported headaches and numbness to her family health care provider in July 2018, which, as noted earlier in the records, had resolved after the accident.

12In December, 2018, the Applicant described to her health care provider that she was succeeding in school and balancing school and family life. There was no indication at that point that the Applicant’s ability to carry out the activities of her daily life was significantly restricted.

13To date, the Respondent has paid $7,215.00 in non-earner benefits, and $6,409.36 in medical/rehabilitation benefits.

ANALYSIS

a. Is the Applicant entitled to a non-earner benefit of $185.00 per week from June 10, 2018 to August 12, 2019?

14Section 12(1) of the Schedule outlines the test to be applied when determining eligibility for non-earner benefits relevant to this Applicant’s claim:

12. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

13. 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 an income replacement benefit.

15Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as whether, “as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

16While the phrase ‘substantially all’ is not defined in the Schedule, the Court of Appeal has held that ‘substantially all’ does not mean ‘all.’¹

17The Court of Appeal provided guidance as to how to analyse whether a person is inhibited from substantially all of their activities: the Tribunal should compare the applicant’s life before the accident to the applicant’s life after the accident, in accordance with the following principles:²

• The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
• 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.
• 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.
• “Engaging in” should be interpreted from a qualitative perspective. 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.
• 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 physically perform those activities.

18The burden of proof in demonstrating that the applicant is prevented from engaging in substantially all of their daily activities lies with the Applicant.³

19As referenced above, the Applicant underwent an EUO. This took place about five months after the accident and before the Applicant gave birth to a healthy baby. At the EUO, the Applicant described her life immediately before the accident to include:

a. Waking early to take care of her kids and get them ready for school;

b. Playing with her child that is not attending school;

c. Preparing dinner;

d. Helping with homework;

e. Giving her children a bath;

f. Reading romance novels, working out, and going to church; and,

g. Braiding hair.

20Though no submissions were made on this point, the totality of the evidence, including the EUO, suggests that the most important daily activities in the Applicant’s life are those in respect of her children. One particular passage from Dr. Siegel’s report speaks volumes in this regard:

Of note, it is significant for Ms. Griffith-Reid to be more physically active with her children and this is a source of upset. She noted that she is not able to hold her newborn son as long as she would like, and is not able to play with her 2-year-old son the way that she did prior to the accident, as she is more limited because of the pain.

21The Applicant’s submissions with respect to whether she is entitled to the non-earner benefit are based entirely on the EUO or examinations done before the EUO (e.g. a psychological assessment report conducted in December 2017).

22The Applicant was, at the time of the EUO, receiving non-earner benefits in the amount of $185 per week. She continued to receive non-earner benefits until June 2018.

23The termination of the Applicant’s non-earner benefits is based on three subsequent section 44 examinations, the reports for which are dated May 22, 2018. Two of the examinations were conducted before April 10, 2018 (i.e. before the Applicant’s stroke, but after she gave birth to her child. One examination was conducted almost three weeks after the Applicant’s stroke.

24The examinations – by a psychologist, a physician, and an occupational therapist – all arrived at the same conclusion: that the Applicant did not suffer from a complete inability to carry on a normal life. Dr. Siegel’s report examined the Applicant for psychological or pain-related limitations on her activity and found that there were some, but that they did not give rise to a complete inability to carry out her daily activities. Further, Dr. Siegel’s assessment was conducted after the Applicant suffered her stroke. Dr. Dhirayain examined the Applicant for physical limitations in her daily activities, and observed none, notwithstanding that the Applicant reported several to him during the assessment. Dr. Belfon examined the Applicant’s overall health and injuries and her ability to carry out tasks independently. Dr. Belfon found that the Applicant was independent with respect to self-care tasks, and that her daughter assisted her with general household duties. He noted some limitations but concluded that they did not amount to a complete inability.

25Specifically, the section 44 examinations with respect to non-earner benefits noted that the Applicant:

a. was independent in personal care tasks;

b. had her daughter assist with housekeeping and home maintenance;

c. did some cooking and cleaning, though not a majority of it;

d. would take care of her son but experienced pain if she held him too long;

e. experienced neck pain and headaches;

f. had some residual physical and psychological impairments from her injuries;

g. had not returned to going to the gym;

h. was 40 percent improved in her physical ability;

i. experienced psychological deterioration;

j. was not reading as much as before the accident;

k. attended church sometimes; and

l. had to put in more effort to mobilize psychological resources to carry out her daily living.

26There is no doubt that the Applicant, at the time of the section 44 examinations, continued to suffer somewhat in her ability to live a normal life since the accident. I cannot conclude, however, that she was significantly restricted in engaging in her daily life, or that she was unable to carry out substantially all of her daily activities as a result of the accident for the following reasons.

27First, focusing on the greater weight activities in the Applicant’s life, the totality of the evidence indicates that the Applicant is affected by her injuries, but is not prevented from engaging in substantially all of her daily activities in relation to her children. In all three of the May 2018 section 44 examination reports, the Applicant is indicated as self-reporting that she can still care for her newborn and toddler sons, though she does so through some pain, and with some assistance. All of the reports were also consistent in their assessments of the Applicant – no physical restrictions, some psychological difficulties, and some residual pain in caring for her children. There is no evidence contemporaneous with these assessments to contradict their findings. Therefore, I find that during the period in which non-earner benefits are sought, the Applicant’s injuries did not result in a complete inability to carry out the most important of the Applicant’s daily activities.

28Second, the Applicant was not continuously prevented from engaging in substantially all of the remainder of her daily activities. Her condition improved during the relevant time period. For example, during the EUO, the Applicant reported that she could not attend church. Dr. Dhirayain’s assessment, a few months later, notes that “she is not going to church as regularly as she cannot sit for long time…” and Dr. Siegel’s assessment (conducted several weeks after Dr. Dhirayain’s) states that the Applicant goes to church.

29The only other evidence from after the EUO is a physician’s assessment conducted on January 3, 2018 in respect of a previous proposed treatment plan, and a psychological assessment in February 2019 in respect of a proposed treatment plan. The January 2018 assessment notes that the Applicant is independent in her personal care tasks, has difficulty with her caregiving responsibilities for her toddler son, has to pace herself in household chores, and has not resumed going to the gym. During the February 2019 assessment, the Applicant reported a 70 percent overall improvement, and specifically that “her pain has improved significantly since the birth of her son.” She also stated that she has returned to exercising several times a week. Most importantly, the Applicant’s self-report of her daily activities indicates that she has resumed her pre-accident schedule and activities, and further added attending college full-time.

30Third, the case law submitted by the Applicant in support of her position is distinguishable, as illustrated by the following examples. In Chance-Guppy v. Aviva General Insurance⁴ the applicant (a) had an impairment that endured until the record ended; (b) could not return to work or school; and (c) struggled on a persistent basis to meet the needs of her children. In 17-001627 v Certas Direct Insurance Company,⁵ the applicant complained consistently about headaches, and the reported impact of those headaches on the applicant’s daily life was dramatically different than the current instance. In 16-003195 v. State Farm Insurance Company⁶ the applicant, by the nature of her injuries, could not physically keep her child safe in certain instances, and this impairment persisted throughout the relevant time period.

31The Applicant is, by any measure, affected in her activities as a result of the accident. She is not, however, completely unable, as defined by the legislation and the case law, to carry out these activities of her daily life. Therefore, I find that the Applicant has not satisfied her onus to demonstrate her entitlement to non-earner benefits from June 10, 2018 to August 12, 2019.

b. Are the proposed treatment plans reasonable and necessary?

32Sections 14 and 15(1) of the Schedule states that insurers shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for, among other things, medical, chiropractic, and psychological services, assistive devices, and other goods and services of a medical nature that are essential for the treatment of the insured person.

33The onus is on the Applicant to demonstrate, on a balance of probabilities, that all the treatment plans in dispute are reasonable and necessary.⁷ This requires the Applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident. The causation test to be applied is the “but for” test.

34Next, the Applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.⁸

i. Is the Applicant Is the Applicant entitled to a medical benefit in the amount of $3,948.91 for a chiropractic treatment, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated April 26, 2018?

35I find that the Applicant is not entitled to the proposed treatment plan.

36The Applicant’s injuries are described consistently across the evidence, and there does not appear to be a dispute with respect to what injuries she has suffered, with one exception. From the proposed treatment plan, the Applicant’s injuries are sprains and strains of sections of her spine, and of her shoulder; sleep disorder, nervousness and PTSD; as well as transient ischemic attacks (“TIA”).

37The TIA diagnosis is related to the stroke-like episode the Applicant suffered earlier in April 2018. Aside from the proposed treatment plan listing the TIA as a ‘direct result of the automobile accident’ there is no evidence to suggest that the TIA was caused by the accident. The proposed treatment plan discusses the TIA on several occasions, each time attributing it to stress. Nowhere is it suggested that the TIA was caused by the accident. Similarly, the hospital and family care provider records do not attribute the TIA to the accident. There is nothing to suggest that but for the accident, the Applicant would not have suffered the TIA. I cannot conclude, on a balance of probabilities, that the TIA was caused by the accident.

38Turning to the proposed treatment plan, the question becomes, is the proposed treatment plan reasonable and necessary to treat injuries caused by the accident?

39The proposed treatment plan is to reduce pain, increase strength, and increase range of motion by treating the Applicant’s injuries through physical stimulation, hypothermy, acupuncture, manipulation, mobilization, exercise, and therapy. Fourteen treatment sessions are proposed.

40An earlier treatment plan contained the same treatment modalities, and described many of the same injuries, but was focused on the Applicant’s injuries sustained in the accident. For example, the earlier treatment plan listed the Applicant’s limitations as “patient has difficulty with activities entailing bending, lifting, carrying, overhead activities, prolonged postures and activities entailing strength and endurance.” The proposed treatment plan at issue, in the same section, contains the same language but adds “patient had transient ischemic attack due to stress last week. Weakness of the left side of the body and high blood pressure post stroke. Patient stressed about pain and gain weight.”

41The proposed treatment plan does not distinguish which of the proposed treatments are for the aftereffects of the TIA and which are for the injuries sustained in the accident. It simply identifies the treatment, and then in most cases identifies ‘multiple body sites’ as the locus of the treatment. As a result, I cannot determine whether some or all of the proposed treatments are reasonable and necessary to treat the Applicant’s injuries as sustained in the accident.

42Zooming out to consider the entirety of the record, the rehabilitation centre’s logs show the Applicant attended rehabilitation on a regular basis from the time of the accident until at least 2019, with a break in the middle when her child was born. She would often be treated using similar modalities when she went.

43By early January 2018, the Applicant reports feeling 40 percent better overall in respect of her neck and shoulder pains and her headaches. The January 2018 physician’s assessment did not find objective evidence of ongoing musculoskeletal, neurological, or orthopaedic injuries from the accident.

44In May 2018, Dr. Belfon conducted a paper review assessment with respect to the proposed treatment plan. Relying in large part on the January 2018 assessment, and Dr. Belfon’s own in-person assessment conducted in April 2018, Dr. Belfon concluded that the proposed treatment plan is not reasonable and necessary.

45Specifically, Dr. Belfon concluded that the Applicant had reached maximal recovery for the injuries she sustained in the accident, and it was unlikely that further formal rehabilitation services would yield objective and sustainable therapeutic benefits.

46By spring and summer 2018, the Applicant’s health care provider’s notes no longer made mention of the Applicant’s injuries from the accident. Instead the Applicant’s issues revolved around follow up from her TIA. Finally, by February 2019, the Applicant reported a 70 percent improvement in her symptoms.

47Based on this evidence I find that there is nothing contemporaneous to contradict Dr. Belfon’s assessment of the Applicant’s recovery. The Applicant continued to attend treatment, and though she may have experienced some residual benefits with regards to her injuries from the accident, the evidence suggests that her rehabilitation was in large part focused on addressing the impact of her TIA.

48In other words, while the evidence does support a finding that the Applicant attended and experienced benefit from rehabilitation in the months after the accident, there is insufficient evidence to indicate that by the time April 2018 rolled around that there remained any significant need for rehabilitative services as a result of injuries sustained in the accident.

49I find that, on a balance of probabilities, the Applicant has not satisfied her onus to prove that the proposed treatment plan is reasonable and necessary.

ii. Is the Applicant to a medical benefit in the amount of $3,191.25 for chiropractic treatment, recommended by Inline Rehabilitation Centre Inc. in a treatment plan (OCF-18) dated September 20, 2018?

50Similarly, I find that the Applicant is not entitled to the proposed treatment plan.

51This treatment plan identifies the same injuries (including the TIA), goals, and proposes the same treatments as the treatment plan above. The only differences are that this treatment plan proposes twelve sessions instead of fourteen, and that nearly all of the references to TIA are removed. The Respondent relies on the same May 2018 section 44 examination to deny the Applicant’s proposed treatment plan.

52And again, besides the proposed treatment plan itself, there is no contemporaneous evidence to support why this proposed treatment plan is reasonable and necessary. The family health care provider’s notes do not indicate that the Applicant continues to suffer from injuries sustained in the accident, nor are there any additional examinations about the Applicant’s physical injuries that might contradict Dr. Belfon’s report that the Applicant has achieved maximal recovery.

53With only the same evidence available, I can only draw the same conclusion. I find that, on a balance of probabilities, the Applicant has not satisfied her onus to prove that the proposed treatment plan is reasonable and necessary.

c. Is the Applicant entitled to interest on any overdue payment of benefits?

54Given my findings above, I find that the Applicant is not entitled to interest on any overdue payments.

ORDER

55The Applicant has not met her onus to prove that she is entitled to (a) non-earner benefits from June 10, 2018 to August 12, 2019; or (b) the two proposed treatment plans. Consequently, the Applicant is also not entitled to any interest on overdue payments. The application is dismissed.

Released: May 19, 2022

Asad Ali Moten

Adjudicator

Footnotes

1. 1Galdamez v. Allstate Insurance Company of Canada 2012 ONCA 508, para. 39.
2. 2Heath v. Economical Mutual Insurance Company, (2009) 2009 ONCA 391, 95 OR (3d) 785 (CA), para. 50.
3. 3R.S. v. Aviva, 16-003141/AABS, July 17, 2017, para. 17; see also Heath, generally
4. 42020 ONLAT 19-004820/AABS
5. 52017 CanLII 99139.
6. 62017 CanLII 99136.
7. 7Scarlett v Belair Insurance, 2015 ONSC 3635
8. 8See, for e.g., 17-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT).; 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.