Citation: Canning v. Security National Insurance Company, 2022 ONLAT 20-006912/AABS

Licence Appeal Tribunal File Number: 20-006912/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:

Jennifer Canning

Applicant

and

Security National Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Michael Yermus, Counsel

For the Respondent: Pamela Vlasic, Counsel

HEARD: By way of Written Hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on December 3, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are before the Tribunal, to be decided:

I. Is the applicant entitled to receive a non-earner benefit in the amount of $185 per week, for the period of December 2, 2018, to date and on-going?

II. Is the applicant entitled to interest on any overdue payment of the benefit?

III. Is the applicant entitled to an award under Reg. 664 because the respondent unreasonably withheld or delayed payment of the benefit?

LAW

3Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, 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.

4Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit 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 an income replacement benefit.

5Section 12(3)(c) of the Schedule states that an insurer is not required to pay a non-earner benefit for more than 104 weeks after the accident.

6Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

Background

7The applicant has been the recipient of long-term disability benefits since 2013 as a result of her mental health issues². She has been diagnosed with Major Depressive Disorder and Chronic Post-traumatic stress disorder (‘PTSD’), which prevented the applicant from working.

8The applicant was also receiving a Canada Pension Plan Disability (‘CPPD’) benefit³.

9The applicant lives with her partner and son.

IS THE APPLICANT ENTITLED TO THE NON-EARNER BENEFIT?

Submissions and evidence

10The applicant submitted that as a result of the accident, she has suffered a completed inability to carry on a normal life. As a result of this, she argues that she is entitled to a non-earner benefit (‘NEB’) on the basis of psychological injury. As a whole, she submitted that the accident intensified her pre-existing conditions.

11To support this position, she relied on her disability certificate (‘OCF-3’)⁴ of Dr. Tasneem Visram, chiropractor. This document found that the applicant suffered from strain and sprain of the cervical, lumber and thoracic spine, and hand, radiculopathy, headaches, sleep issues, nightmares and flashbacks, PTSD and fear/anxiety with driving.

12The OCF-3 found that the applicant suffered a complete inability to carry on a normal life and was substantially unable to perform her housekeeping and home maintenance duties performed before the accident. Dr. Visram anticipated the applicant’s disability to last 9-12 weeks and that diagnostic imaging was pending.

13The OCF-3 also noted that the applicant had pre-existing conditions including PTSD, anxiety, depression, asthma, bronchitis, GERD, gestational diabetes, kidney removal, and a ligament torn in one knee.

14The applicant also relied on a section 25 assessment⁵ written by Dr. Judith Pilowsky, psychologist, who opined that as a result of the accident, the applicant has sustained a complete inability to carry on a normal life due to her physical and psychological impairments.

15Dr. Pilowsky reported that as a result of the accident, the applicant is unable to perform her activities of daily living (‘ADL’s) such as childcare, housekeeping and social and recreational activities; the doctor also noted that prior to the accident, the applicant had a “breakthrough” in her psychological treatment and was independent in her ADLs.

16Based on the applicant’s psychometrics⁶, Dr. Pilowsky found the applicant had severe depression and anxiety and provided the applicant with diagnoses of major depressive disorder, severe, exacerbated and maintained by the accident, PTSD with panic attacks.

17The respondent submitted that Dr. Pilowsky was not provided with pre-accident medical evidence to review before or after her assessment of the applicant; therefore, little weight should be put on Dr. Pilowsky’s findings regarding the applicant’s pre-accident abilities.

18The applicant also relied on the clinical notes and records of her psychologist, Dr. Amberley Buxton⁷. Dr. Buxton noted the applicant reported nerve damage in two of her fingers and her anger and frustration as a result of this. Dr. Buxton noted that the applicant appeared dysphoric and reported sleep and emotional issues.

19The applicant also relied on the clinical notes and records⁸ of her social worker, Karen Lewis. Ms. Lewis noted that the applicant reported difficulty managing on a daily basis and often appeared sad and withdrawn. The applicant mentioned her issues with motivation, anxiety, driving fears, sleep issues and troubles with her ADLs.

20The applicant reported that her injuries are impacting her relationship with her son, and she is unable to support her son with his schoolwork and provide emotional support⁹.

21The applicant also relies on a record from her family doctor, Dr. Nigel Jagan, where the doctor noted the applicant’s pre-existing PTSD, anxiety and depression, which were being well managed until the accident and she now struggles with her ADLs.¹⁰

22The applicant relied on Barnes v. Motor Vehicle Accident Claims Fund¹¹, where the arbitrator found that an applicant can still meet the complete inability test even if their pre-accident life had a decreased level of functionality and mobility.

23The applicant also relied on her section 25 driving anxiety assessment¹², conducted by Dr. Fahimeh Aghamohseni, psychologist. Dr. Aghamohseni noted the applicant reported that after the accident, she suffered from anger, irritability, heightened anxiety, being easily startled, catastrophizing and difficulty relaxing. The applicant also described experiencing sleep issues, fatigue, and isolation after the accident.

24Dr. Aghamohseni noted that the applicant described her driving anxiety and avoidance issues leading to issues with her ADLs post-accident, as she no longer participates in recreational activities with her son or visits her parents in Montreal. Dr. Aghamohseni confirmed the applicant’s driving anxiety issues via psychometrics¹³.

25The respondent submitted that Dr. Aghamohseni’s report should be afforded less weight, as the report fails to explore or compare the applicant’s abilities before and after her accident.

26The respondent argued that the applicant has failed to demonstrate that her impairments were caused by the accident and apply the applicable “but for” test, as seen in Sabadash v. State Farm¹⁴ and M.V. v Pembridge Insurance Company¹⁵.

27The respondent also relied on A.C. v Aviva Insurance Canada¹⁶, where the applicant suffered soft tissue injuries but her psychological issues pre-existed and were not found to be as a result of the accident.

28The respondent submitted that the applicant’s psychological issues are pre-existing and long-standing and that the accident had no impact on such.

29The respondent relied on the applicant’s clinical notes and records from Manulife¹⁷ and Ms. Lewis,¹⁸ which noted that before the accident, the applicant barely left her home, was unable to do social activities or volunteer, and received help from her spouse with her ADLs. After the accident, Manulife noted¹⁹ that the applicant had not improved despite regular consults and therapy.

30The respondent also relied on the Court of Appeal’s leading decision in Heath v. Economical²⁰, which found that the test for non-earner benefit is one of the most rigid tests under the Schedule. This test is subjective and requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period of time.

31There are six factors from Heath that the Court of Appeal considered when determining if an insured person suffers a complete inability to carry on a normal life pursuant to section 3(7) of the Schedule²¹ and, therefore, for the purposes of eligibility for a non-earner benefit.

32The respondent submitted that even if the applicant’s impairments were caused by the accident, which the respondent does not admit to, the applicant has not provided compelling evidence to show that she meets the complete inability test.

33The respondent argued that the applicant had submitted three separate OCF-3s²², but only that of Dr. Visram found that the applicant suffered a complete inability. Furthermore, the applicant failed to address the fact that Dr. Visram opined the applicant’s disability would last nine to twelve weeks.

34The respondent relied on the applicant third OCF-3²³ and authored by Dr. Jagan, who checked off on the OCF-3 form that the applicant did not satisfy the complete inability test. The respondent also noted that the day the OCF-3 was authored by Dr. Jagan was the last time the applicant specifically mentioned her accident with her family doctor, despite the applicant visiting the doctor frequently.

35Dr. Jagan’s clinical notes and records²⁴ indicate that when Dr. Jagan was asked to opine if the applicant suffered a complete inability as a result of the accident, Dr. Jagan wrote: "Due to limited information and follow-up, cannot give an opinion as to whether she suffers a complete inability to carry on a normal life as a result of the accident."

36The respondent submitted that before the accident, the applicant suffered from many health issues including panic attacks, self-harm behavior, sleeping issues and suicidal thoughts. The respondent alleged that these issues impacted her long-term relationship, her persistence, and forced the applicant to become home bound, but none the less, she was able to care for her son²⁵.

37The respondent disputed the clinical notes and records of Lakeridge Health²⁶, and submitted that instead, it appeared that the applicant was better able to function in the two years following the accident. Examples of this improved functionality include the applicant’s more frequent trips, her ability to attend multiple appointments, and her care for her son and a high needs cat²⁷.

38The respondent relied on its section 44 assessment²⁸, conducted by Dr. Yong-Kyong Michael Ko, physiatrist. The applicant told Dr. Ko that she was independent in her ADLs. Based on this, Dr. Ko opined that the applicant did not suffer from a complete inability as a result of the accident from a physical perspective.

39The respondent also relied on its section 44 occupational therapy-in home assessment²⁹, authored by Dawn Li, occupational therapist. Ms. Li noted that the applicant reported being able to spot clean her bathroom and purchase light groceries. The respondent submits that the applicant’s evidence is inconsistent as, on the one hand, she reported no longer being able to take her son to activities; however, the clinical notes and records of Lakeridge Health note that the applicant reported being able to do such after the accident³⁰, as well as drive to and from Montreal³¹.

40The applicant noted that she provided a subjective comparison of her typical day to Ms. Li, and noted that after the accident, she could no longer prepare breakfast for her son, get her son to school on time, clean her home, volunteer at her son’s school, or assist with her son’s homework.

41The respondent also relied on a second section 44 assessment; this time authored by Dr. Shahriar Moshiri, psychologist. Dr. Moshiri found that the applicant did not suffer a complete inability on a psychological basis and opined that the applicant was able to do her pre-accident activities.

42The applicant also argued that as Dr. Moshiri found that the applicant’s injuries were mainly physical, little weight should be put on the doctor’s findings, as Dr. Pilowsky and the applicant’s medical records prove otherwise.

43The applicant argued that all of the respondent’s section 44 assessments failed to account for Heath³², which states that when considering a person’s pre-accident activities, greater weight may be given to activities which were most important to the applicant and that an applicant’s pre-accident activities must be assessed from a qualitative perspective³³.

Analysis

44After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the NEB, as she has failed to show that she suffers a complete inability as a result of the accident.

45In this case, it is clear that the parties have brought contradictory medical evidence for the Tribunal to consider and weigh.

46Both parties also argued that the psychological assessments of the applicant were invalid due to not having “baseline” information regarding the applicant’s pre-accident activities.

47In terms of considering the psychological evidence provided by the applicant, I found the OCF-3 of Dr. Visram less persuasive, considering the applicant failed to address the more recent OCF-3 of Dr. Jagan that found that the applicant did not satisfy the complete inability test, nor the fact that both doctors estimate the applicant’s injuries to last 9 to twelve weeks.

48When considering the competing reports of Dr. Pilowsky, Dr. Aghamohseni and Dr. Moshiri, I had concerns that the doctors had access to, nor were able to consider the applicant’s pre-accident medical history beyond her own self-reporting. In terms of assessing this evidence, I agree with the respondent’s submission that, when considering an applicant’s claim to have a complete inability, the Heath decision requires the Tribunal to compare the applicant’s pre-accident and post-accident normal activities.

49As a result, I afford all of these reports less weight when considering the applicant’s pre-accident activities.

50I also considered Dr. Buxton’s and Ms. Lewis’ evidence, who provided information regarding the applicant’s mental health issues. However, their evidence did not specifically address the Heath test, the issue of causation beyond the applicant’s self-reporting, nor the applicant’s complete inability.

51In terms of the issue of causation, I agreed with the respondent’s position and am persuaded by A.C. v Aviva Insurance Canada that the applicant has not shown, based on a balance of probabilities, that her psychological injuries have been exacerbated or caused by the accident.

52I relied on the clinical notes and records of Manulife, which contradicted the clinical notes and records of Dr. Jagan, and noted that before the accident, the applicant barely left her home, was unable to do social activities or volunteer, received help from her partner with her ADLs. After the accident, Manulife noted that the applicant had not improved despite regular consults and therapy.

53I agreed with the respondent’s submissions regarding M.V. v Pembridge Insurance Company, and that the applicant has provided little evidence regarding her pre- and post-accident activities and how her accident impairments led to a complete inability. The applicant has the burden of proving that she is entitled to the NEB, and she has not discharged her burden.

Interest and award

54As no benefit is outstanding, no interest or award will be awarded.

CONCLUSION and order

55The applicant is not entitled to the non-earner benefit.

56The applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Manulife’s Long Term Disability file for the applicant from March 2018 to December 2020.
3. 3Ibid.
4. 4Dated March 6, 2019.
5. 5Dated August 19, 2019.
6. 6Beck Depression Inventory and Beck Anxiety Inventory.
7. 7Clinical notes and records from Lakeridge Health from Dr. Buxton.
8. 8Clinical notes and records from Lakeridge Health from Ms. Lewis.
9. 9Ibid.
10. 10Dated May 7, 2019.
11. 11Barnes v. Motor Vehicle Accident Claims Fund, [2012] O.F.S.C.D. No. 95, 2012 CarswellOnt 10035
12. 12Driving anxiety assessment and treatment plan preparation dated August 24, 2020.
13. 13With the Vehicle Anxiety Questionnaire, Travel Anxiety Questionnaire, and Beck Anxiety Inventory.
14. 14Sabadash v. State Farm et al., 2019 ONSC 1121.
15. 15M.V. v Pembridge Insurance Company, 2020 CanLII 40339 (ON LAT).
16. 16A.C. v Aviva Insurance Canada, 2020 CanLII 103675 (ON LAT).
17. 17Manulife’s Long Term Disability file for the applicant from March 2018 to December 2020.
18. 18Clinical notes and records from Lakeridge Health from Ms. Lewis of December 2017 to December 2018.
19. 19Manulife’s Long Term Disability file for the applicant from March 2018 to December 2020.
20. 20Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
21. 21Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
22. 22Dated January 9, 2019, March 6, 2019, and May 7, 2019.
23. 23Of May 7, 2019.
24. 24Of June 2020.
25. 25Clinical notes and records from Lakeridge Health from Ms. Lewis of December 2017 to December 2018.
26. 26Namely those of Ms. Lewis and Dr. Buxton.
27. 27Clinical notes and records from Lakeridge Health from December 2018 to December 2020.
28. 28Dated June 29, 2019.
29. 29Also dated June 28, 2019.
30. 30Clinical notes and records of Lakeridge Health dated December 10, 2018,
31. 31Clinical notes and records of Lakeridge Health dated January 22, 2019, April 4, 2019, April 29, 2019, October 18, 2019, July 8, 2019, April 2, 2020, and July 9, 2020.
32. 32Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
33. 33As seen in 18-001560 v Allstate Insurance, 2019 CanLII 22201 (ON LAT).```