Licence Appeal Tribunal File Number: 18-008859/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:

[C. F.]

Applicant

and

Commonwell Mutual Insurance

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Cynthia Foster, Self represented

For the Respondent: Linda Mathews, Counsel Savi Singh, Representative Candice Mowbray, Law Clerk

Court Reporters: Thomas Dellinger Graeme Peto, (June 10)

Heard by Videoconference: June 7 to 10, 2022

BACKGROUND

1The applicant was involved in an automobile accident on November 9, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The applicant applied for a non earner benefit which was denied by the respondent on the basis that she did not meet the test for a non-earner benefit and the benefit was filed after the expiry of a statutory 2 year limitation period under section 56 of the Schedule. The respondent denied the treatment plans on the basis they are not reasonable and necessary.

2The applicant testified briefly at the hearing. She called her sister to testify. No medical experts were called by the applicant to testify and no medical reports were filed by the applicant. The respondent called Jeff Ford, occupational therapist and Dr. Kucher, neurologist to testify at the hearing. Both were qualified as experts in their respective fields.

ISSUE IN DISPUTE

3The following issues are to be determined at the hearing:

a. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 9, 2015 to November 8, 2016?

b. Is the applicant entitled to a medical benefit in the amount of $1,058.19 for physiotherapy treatment recommended by Paul Love, Barrie Physiotherapy in a treatment plan submitted on September 7, 2016, and denied on September 23, 2016?

c. Is the applicant entitled to a medical benefit in the amount of $2,569.10 for physiotherapy treatment recommended by Paul Love, Barrie Physiotherapy in a treatment plan submitted on September 19, 2017, and denied on September 25, 2017?

d. Is the applicant entitled to a medical benefit in the amount of $963.97 for physiotherapy treatment recommended by Laura Jackson, Barrie Physiotherapy in a treatment plan submitted on February 26, 2018, and denied on March 9, 2018?

e. Is the applicant entitled to a medical benefit in the amount of $1660.00 for optometric services recommended by Dr. Ubhi in a treatment plan submitted on April 18, 2018, and denied on May 24, 2018?

f. Is the applicant entitled to a medical benefit in the amount of $598.50 for physiotherapy treatment recommended by John Nieuwland in a treatment plan submitted on February 23, 2015 and denied on March 5, 2015?

g. Is the applicant entitled to payments for the cost of an examination in the amount of $2,156.08 for an attendant care needs assessment, recommended by Larisa Kalins in a treatment plan dated May 17, 2018 and denied by the respondent on May 24, 2018?

h. Is the applicant entitled to payments for the cost of examination in the amount of $3,865.00 for an ocular/eye assessment, recommended by Dr. Uhbi in a treatment plan dated April 18, 2018 and denied by the respondent on July 4, 2018?

i. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4The applicant is not entitled to a non-earner benefit as she failed to prove she meets the relevant test. The treatment plans are not reasonable and necessary. As no payments for benefits were unreasonably withheld or delayed by the respondent, the claim for an award is dismissed. As no payments for benefits are owing, the claim for interest is dismissed.

PRELIMINARY ISSUES

5At the outset of the hearing on June 3, 2022, the respondent brought a motion with written submissions² requesting the dismissal of the application on the basis that the applicant failed to comply with the Tribunal’s orders for productions dated August 10, 2021 and April 12, 2022 (requiring the production of documents to be filed by April 19, 2022). The applicant also failed to file a witness list and document brief with the evidence she intended to rely on at the hearing (both documents were required by Order to be filed by May 27, 2022).

6After hearing initial oral submissions from the respondent on the motion, I advised I was not prepared to dismiss the application because the respondent’s motion was not filed until June 3, 2022, i.e. the first day of the hearing, and as such insufficient notice of the motion was provided to the applicant as required by rule 15 of the Tribunal’s Rules. Moreover, the request for a dismissal under rule 3.4 was previously addressed by the Tribunal and dismissed by Order at the case conference held on April 12, 2022. The respondent stated the request is based on productions not filed. The applicant stated she had produced some documents, which the respondent indicates consisted of 11 pages which were not identified. These records appear to be from the [The Hospital.]³ The respondent stated that on June 2, 2022, it asked the applicant for the complete file from the family doctor and an updated OHIP summary which have not been produced. The respondent stated no records from 2018 onward have been filed with the Tribunal.

7On the third day of the hearing, the applicant filed 112 pages which were sent to the respondent and Tribunal. These documents consist of handwritten notes (which are mostly illegible) and, as far as I could tell, did not contain a medical report from a treating physician. There was no index to identify the documents enclosed. The applicant stated there is a letter from Dr. Tyndel, neurologist, but on review of the one page letter, Dr. Tyndel indicates that he examined the applicant and was referring her for neuropsychology to another doctor, Dr. Chugh, at the York Region Concussion Clinic. The 112 pages of documents include diagnostic imaging records from the Royal Victoria Hospital Regional Health Centre, as well as records indicating a visit to the emergency department of a hospital, exploring a cardiac issue in 2020 and 2021 and exploring a stroke in mid 2019. There are numerous results of CT scans and imaging, but no indication of how these relate to the injuries allegedly sustained as a result of the accident.

8I did provide the applicant the opportunity at the hearing to identify if the 112 pages included a medical report. The applicant did not. I also provided the applicant the opportunity at the hearing to file any medical reports or clinical notes from her treating physicians that she intends to rely on at the hearing. She did not file any medical report or any clinical notes from any treating physicians. Despite the opportunities given to a self-represented applicant and having considered the late filing of the 112 pages, I exercised my discretion under rule 9.4 to not admit these pages into evidence.

9The applicant requested the opportunity to have Dr. Tyndel appear as a witness at the hearing. I advised the applicant on June 7 that she could confirm his availability to testify this week at the hearing but I was not prepared to adjourn this matter to allow the testimony of a witness who was not available to testify this week and whose appearance was not scheduled for the hearing. The applicant advised on the morning of June 10, 2022 that she made contact with Dr. Tyndel who stated to her that he could testify but only in the near future. I advised I am not allowing any further adjournments in this matter to allow the testimony of a witness who is not available to testify this week. This hearing was scheduled in 2019 and did not proceed until this week due to numerous adjournments. The applicant has been provided sufficient notice by the Tribunal in its Orders dated as early as May 6, 2019 and as recent as April 12, 2022 of the requirement to file a witness list and arrange for the testimony of her witnesses. Despite these Orders, the applicant has not filed a witness list or arranged for witnesses. She has not complied with these requirements.

10In light of my finding that the applicant is not entitled to a non-earner benefit, it is not necessary for me to decide if the claim for a non-earner benefit is statute barred under section 56 of the Schedule.

The Hearing

11The central issues in this matter are the nature of the applicant’s alleged injuries and whether any were sustained as a result of the accident. The applicant bears the burden of proof on a balance of probabilities that she sustained impairments as a result of the accident, that she is entitled to a non-earner benefit, and that the treatment plans are reasonable and necessary. For the reasons that follow, I find that the applicant has not met her burden.

The Applicant’s Impairments

12The applicant claims she was injured in an accident when her vehicle was rear-ended and claims she sustained a traumatic brain injury. No medical evidence was submitted to support a brain injury. The evidence⁴ indicates the applicant did not lose consciousness and did not hit her head during impact. The respondent claims the accident was minor as damage to the vehicle amounted to some scratches of paint and the cost to repair was $577.⁵ The respondent produced a transcript from an examination under oath⁶ where the applicant stated the damage to her vehicle was minor as it consisted only of paint scratches on her vehicle, that she could not see any damage to the other vehicle, and that the police considered this incident as a “bump” and did not generate a police collision report.

13The respondent filed an OCF-3⁷ dated December 9, 2014 completed by the applicant’s family doctor, Dr. Swarbreck. The injuries are listed as whiplash, upper back strain and headaches, which are soft tissue injuries, and with a duration of 9 to 12 weeks. There is no notation of an injury to the lower back or brain injury. A second OCF-3 dated November 4, 2015 by Dr. Swarbreck was also filed and expands the list of injuries sustained to include low back pain, sleep, neck and shoulder, soft tissue injury and cognitive issue.

The Applicant’s Evidence

14The applicant did not produce any medical records from her treating physicians to establish the injuries sustained or that any injuries were caused by the accident. No medical doctor or other expert was called on her behalf.

15The applicant called her sister, [S.M. L.], to testify. [Ms. L] testified about the applicant’s complaints include memory and brain issues, headaches, balance issues, problems parking her car, depression and nightmares. She testified that the applicant has problems with housework and doing laundry. She testified the applicant has trouble walking as she walks with a cane and has bladder incontinence. She testified these conditions started after the accident. She testified her sister’s condition has deteriorated and continues to deteriorate. She was asked during cross examination if she had seen any medical reports supporting the applicant’s claim that she sustained a brain injury in the accident or has depression and anxiety. Ms. Lechner testified she has not seen any such medical report.

16On the second day of the hearing, the applicant asked that she be allowed to recall her sister to give testimony. The applicant indicated she had two questions for her sister. The respondent objected but I allowed the sister to be recalled. The first question asked the sister whether the applicant was prescribed a service dog to help with her depression and anxiety. The respondent objected to this line of questioning as they were not provided any evidence of a prescription for a service dog. I allowed the question and but gave the answer little weight. I find that even if the applicant was prescribed a service dog, there is no evidence this is a result of the accident or what injury it relates to. The second question involved some bouts of dizziness and loss of balance. The sister testified the applicant has some balance issues and dizziness but could not give specific details of this. The applicant in her closing submissions mentioned she has bladder incontinence, and a bruised right knee and blood pressure issues. No evidence was presented about these issues during the hearing or that the accident caused them. Her sister testified the applicant had bladder incontinence but I assign this little weight. There is no evidence suggesting the accident caused this. The applicant submitted treatment plans for issues relating to vision. No testimony was received from her or her sister relating to vision issues arising from or caused by the accident.

17The applicant did not submit any records from a family doctor, specialist or medical expert. While the applicant referred to a few documents at the hearing, most were not relevant to the substantive issues in dispute and, as I indicated earlier, I ordered them excluded from evidence. The applicant testified briefly about these documents but stated she could not file them with the Tribunal as she was advised the Tribunal no longer accepts a document via fax. She also stated she did not know she had to file documents with the Tribunal. I was not persuaded by the applicant as I outlined the several orders from the Tribunal that mention all documents that a party intends to rely on are to be filed with the Tribunal.

18Finally, the applicant in her closing submissions stated she also had incontinence issues as a result of the accident. Submissions are not evidence.

19In short, the applicant’s evidence was minimal. I considered her oral testimony and that of her sister. I was persuaded by the respondent’s video surveillance that contradicts the testimony that the applicant has balance and walking issues and dizziness.

20I find based on the totality of the evidence that the applicant has not presented any evidence to support her ongoing pain complaints to her low back or a brain injury. The initial OCF-3 indicates whiplash, upper back injury and headaches but makes no reference to low back injury or a brain injury. There is also no reference to depression or anxiety in either OCF-3s. As to the low back, causation is an issue as the applicant as set out below at her EUO stated the accident did not cause the low back injury. On the whole, I find that the evidence falls well short of meeting the applicant’s burden of proof.

Pre-existing Injuries

21The respondent presented a number of documents that indicate the applicant suffered from numerous medical conditions that pre-existed the accident which include but are not limited to the following:

a. Pain to the applicant’s right shoulder. At the EUO⁸ the applicant admitted she had pre-existing pain in her shoulder which she stated was wearing out. She needed a complete shoulder replacement. The evidence indicates she had two surgeries, one in 2006 and a second surgery in 2014.⁹ Dr. Randle, orthopaedic surgeon performed one of the surgeries. In his operative report of December 4, 2014 he stated the post operative diagnosis was osteoarthritis in the right shoulder.¹⁰

b. Low back pain. The applicant admitted at the EUO¹¹ she had low back pain prior to the accident and that it was not related to the accident. She stated she has had low back issues since she was a teenager. The applicant in her visit on April 28, 2015 with her family doctor, Dr. Swarbreck¹² advised him that she had done some yard work and now had low back pain as a result. Dr. McBroom, orthopaedic surgeon indicated in his report of September 16, 2015 that he saw the applicant in 2008 for back and bilateral leg pain.

c. Head injury or concussion. The EUO indicates the applicant did not hit her head during the accident. No emergency vehicle was called. No parts of her body hit the vehicle. There is no evidence that the applicant sustained a concussion from the accident. She testified her family doctor diagnosed her with whiplash. I find there is no diagnosis by the family doctor of a concussion or brain injury. A similar finding is made by the York Simcoe Brain Injury Clinic.¹³

d. Sprained ankle. The evidence shows that the applicant had a slip and fall and sprained her ankle early in 2012. The applicant saw Dr. Casses, orthopaedic surgeon on January 31, 2013 for the sprained ankle and other medical conditions which were noted as fibromyalgia, chronic pain and neck problems.¹⁴ He stated in his report that her worst pain was not the sprained ankle but her low back and it was radiating pain down her leg. At that time she needed a wheelchair for mobility. Dr. Casses indicated the applicant was on CPP Disability since 1986. The applicant testified at the EUO this is due to her fibromyalgia.

Video Surveillance

22The first video is dated February 9, 2015 ¹⁵ by Hale and Associates and the second video is dated January 11, 2017. In the first video, the applicant is observed shopping, placing a grocery shopping bag in her car, entering and exiting a store, running errands, driving, and she entered and exited her vehicle with no assistance or signs of distress. She attended an art class and was at retail stores in Barrie. No assistance was needed. In the second video, she was observed leaving her residence to go to a retail store. At the store, she is observed walking and pushing a cart. She placed some bags into the back of her vehicle. There is no sign of any distress. She is not observed bent over or walking like an elderly lady as claimed by her sister. She is not walking with any assistance although the applicant claims she had a cane on one day. The investigative report indicates the applicant was observed at one point holding a cane but not observed using it.¹⁶

23She attended at a pet store and exited the store and walked to her vehicle. Someone assisted her and placed a bag into the car she was driving. She then went shopping at a Walmart store. The surveillance shows the applicant driving, parking her vehicle, shopping, and carrying bags. The applicant maintains she needed a cane to walk but there is only one video that shows she may have a cane in her hand, but it is not clearly evident. The respondent relies on the surveillance videos showing the applicant was able to walk, sit, and stand. She spent time attending several stores.

24It is the respondent’s position that the video surveillance does not support the applicant’s reports of ongoing pain and complaints. I agree. The surveillance evidence was taken three months after the accident and again at around 2 years and 2 months post accident at a time when the applicant claims her medical condition continued and has deteriorated. I find the surveillance helps in assessing the applicant’s injuries and find the surveillance does not support the applicant’s claims of injuries and ongoing impairments as a result of the accident.

25Moreover, I find the video contradicts the testimony from the applicant and her sister that the applicant has trouble driving, walking and has balance and dizziness issues. I find the video surveillance was also persuasive and does not support the applicant’s claim for the non earner benefit.

ANALYSIS

Non-Earner Benefit

26The test for entitlement to a non-earner benefit is set out in sections 3(7)(a) and 12(1) of the Schedule. Section 12 (1) states the insurer shall pay a non-earner benefit to an insured in the amount of $185 per week who sustains an impairment as a result of an accident if the insured person satisfies that the applicant 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.

27Section 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.

28The Court of Appeal’s decision in Heath v. Economical ¹⁷ is the leading case on analyzing an insured person’s claim to a non-earner benefit. which outlines several principles to assess entitlement to a non-earner benefit. In summary, these include:

• A comparison of the applicant’s daily life activities before and post-accident.

• A consideration of all the applicant’s pre-accident activities but greater weight can be placed on activities seen as more important to the applicant pre accident.

• The accident related injuries must continuously prevent an insured from engaging in substantially all of their pre-accident activities. The disability has to be uninterrupted.

• The evidence must demonstrate that the insured has significant restrictions in performing an activity as a result of the injuries sustained in the accident.

• “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.

29The applicant completed a Form called Activities of Normal Life dated November 27, 2014 (an OCF-12) in which she outlines the bulk of activities that she could do pre-accident and the activities she can and cannot do after the accident.¹⁸. In this form, she states she is able to complete her personal care, she can communicate, do all the cognitive activities, can shop, prepare meals, house cleaning but cannot vacuum, wash the floors and do garbage removal. Her OCF-12 is not clear as to cutting the grass, gardening and shovelling snow. I find the applicant in her OCF-12 admitted that she is completing substantially all of her pre-accident activities. She does some with pain, but the test is a complete inability to perform these activities.

30I find that based on the totality of evidence, the applicant did not identify which activities are seen as more important to her pre accident. The accident related injuries also do not continuously prevent her from engaging in substantially all of their pre-accident activities. For example, she continues to be able to shovel snow although reports pain afterwards. As stated in Heath, the focus if, there is pain, is whether the individual can physically perform those activities. Further, although the applicant does not bake as before, she is able to prepare meals. The disability is not uninterrupted. The evidence does not demonstrate that the applicant insured has any significant restrictions in performing an activity as a result of the injuries sustained in the accident.

31The applicant presented no medical evidence or testimony from any witness to support her claim that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The burden is on the applicant to prove that she is entitled to a non-earner benefit, by first proving that she sustained impairments as a result of the accident and, second, by proving that those impairments continuously prevent her from carrying on a normal life.

32I find that she has not met her burden of proof. The applicant’s medical evidence to show that she sustained impairments as a result of the accident that prevent her from carrying on a normal life is at best minimal. I am not persuaded that she sustained any such impairments. However, for completeness, I will review the respondent’s medical evidence.

The Respondent’s Medical Evidence

33Numerous IEs were completed by the respondent in 2016 and in 2017. The relevant IE reports to the non earner issue are as follows:

a. Dr. Richard Simms, neuropsychologist, in his April 20, 2016 report¹⁹ completed a psychological assessment with respect to the non-earner benefit and stated that the applicant is active and painting, is doing yard work and snow removal. She was attending her art classes.

b. Dr. Franks, completed a physiatry IE examination of the applicant on February 27, 2015. ²⁰ He indicated in his report the applicant sustained a soft tissue injury and her injuries were within the Minor Injury Guideline. He did acknowledge she could not do heavy physical work activity. As to the non-earner benefit, he noted the applicant was able to do shopping, cook and prepare meals, do light housekeeping activities and laundry which depends on the neck pain she is experiencing.

c. Fred Ford, occupational therapist completed an in-home assessment and in his report dated February 27, 2015,²¹ he noted that the applicant’s pre-accident life was an active one, stating she had completed home renovations, repaired garden tractors, assisted her son with gathering wood from the wood lot on her property, and showed the OT a variety of repairs, installations around the home. She had difficulty with lifting heavier items. The applicant acknowledged to him as summarized in his report that she could:

• Complete personal self-care
• Do some limited light housekeeping
• Do grocery shopping albeit with smaller amounts of groceries
• Do laundry, prepare meals and care for her dog
• Blow snow and shovel from her driveway with reported pain in the neck, shoulders, upper back
• Carry wood into the home and use a sled to pull the wood
• Interacting with her grandchildren
• Drive her vehicle
• Attend social activities outside the home such as art groups and church

Mr. Ford found the applicant did not suffer a completed inability to carry on a normal life.

34The respondent called Mr. Ford and Dr. Kucher to testify at the hearing. Mr. Ford testified that his report was completed two months after the accident. He was to assess the non-earner benefit. He reviewed the injuries listed in the OCF-3 and reviewed Dr. Frank's physiatry assessment report dated February 27, 2015. He only took note of Dr. Frank's diagnosis that the injuries sustained by the applicant were minor.

35Fred Ford testified the applicant reported she enjoyed knitting and embroidery prior to the accident and continued doing these after the accident but not on a regular basis. His testimony as to the activities the applicant could or could not perform is consistent with his report as set out in paragraph 33 c above. For example, she reported being independent with her self-care. She was able to do housekeeping chores but avoided heavier tasks. She had asked for physiotherapy but found that physiotherapy did not really help. She was doing snow removal at her home.

She could sit and stand, she could reach overhead in the back of her head, she could reach her lower back with her right hand, she could shop, lift lightweights. He noted no balance issues and did not see any sign of balance issues. She asked during cross examination why he did not note that she had been crying during the examination. He stated if she was crying, he would have noted it. With respect to a test to see if she had sustained a brain injury, he stated any such injury would be noted in the OCF-3 and it was not.

36Dr. Kucher testified that the applicant did not use cane or assistive device.

37I find based on the totality of the evidence that the applicant is not, as a result of the accident, suffering a complete inability to engage in her normal activities of daily living. She is not entitled to a non-earner benefit.

Are the treatment plans reasonable and necessary?

38Sections 14 to 15 of the Schedule provide that an insurer is liable to pay for all 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 a treatment plan is reasonable and necessary.

39To assess if a treatment plan is reasonable and necessary, the Tribunal requires an analysis whether:

1. The treatment goals, as identified, are reasonable;
2. The treatment goals are being met to a reasonable degree; and,
3. The overall costs of achieving these goals are reasonable.

40For the reasons that follow, I find the applicant has failed to prove that the treatment plans in dispute are reasonable and necessary.

For Physiotherapy

41There are four treatment plans for physiotherapy. The two treatment plans recommended by Paul Love, chiropractor were assessed by Dr. Ikejiani, orthopaedic surgeon,²² who found one treatment plan was reasonable and necessary as it provided sessions for active exercises but opined that the second treatment plan was not reasonable and necessary as a further passive clinic-based therapy is not warranted.

42The respondent also indicated the applicant was approved for physiotherapy for $2,200 of which only $932.50 has been incurred. The respondent maintains she was not attending treatment. Further, the applicant reported to an IE assessor that the physiotherapy treatment she received had hurt her and she stopped going. As such further physiotherapy is not reasonable nor necessary. I find that she is not entitled to these treatment plans.

Optometric Services

43I find the applicant is not entitled to a medical benefit for optometric services or the cost of an examination for an ocular/eye assessment. The applicant presented no evidence of an injury to the eye caused by the accident. Further. Dr. Paul Rinalli in his Neuro-Ophthalmology Assessment dated September 14, 2018 concluded:

“…that no significant neuro ophthalmological injury was sustained as a direct result of the subject motor vehicle accident. Her reported complaints are not correlated with any objective abnormalities, as there are none on this examination that relate to the subject accident.”

Attendant Care Assessment

44No evidence was presented for the need for an attendant care assessment, accordingly the applicant is not entitled to this claim.

An Award Under Regulation 664

45There is no basis on which to make an award as no benefits were unreasonably withheld or delayed. The applicant’s award request is dismissed.

INTEREST

46As no payments for benefits are overdue, the claim for interest is dismissed.

CONCLUSION AND ORDER

47For the above-noted reasons, I find that the applicant has not sustained a complete inability to carry on a normal life. She is not entitled to a non-earner benefit. The applicant is not entitled to the treatment plans as they are not reasonable and necessary. The claims for an award and interest are dismissed.

Released: July 13, 2022

Thérèse Reilly

Adjudicator

Footnotes

1. 1Regulation 34/10.
2. 2Motion submissions of the respondent dated June 3, 2022.
3. 3Ibid, at paragraph 23. The respondent indicated the 11 pages did not include any admission, or physician notes.
4. 4Examination under Oath dated January 14, 2015, exhibit 5, page 1432, respondent’s document brief (the Brief).
5. 5Property damage file, dated November 26, 2014, exhibit 4, the Brief, pages 28 to 34.
6. 6Examination under Oath dated January 14, 2015, exhibit 5, page 1432 of the Brief.
7. 7OCF-3 dated December 9, 2014, Exhibit 2, page 561 of the Brief.
8. 8EUO dated January 14, 2015, of the Brief.
9. 9Exhibit 9, Clinical notes of Dr. Randle, the Brief, pages 3766, November 23, 2013.
10. 10Operative report Dr. Randle, dated December 12, 2014, page 3768, of the Brief.
11. 11EUO, dated January 14, 2015, exhibit 5, page 1432 of the Brief.
12. 12Exhibit 8, clinical notes and records of Dr. Swarbreck, page 3089, of the Brief.
13. 13Exhibit 14, York Simcoe Brain Injury Clinic, February 22, 2018 at page 5586 of the respondents document brief.
14. 14Dr. Alberto Casses, January 31, 2013 for a sprained ankle, exhibit 6, page 4313 of the Brief.
15. 15Exhibit 15, Video Surveillance, and investigative reports of surveillance dated February 9, 2015 and January 24, 2017, pages 1388 to 1412, of the Brief.
16. 16Video Investigative report, page 1412, of the Brief.
17. 17Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
18. 18Activities of Normal Life, OCF-12, completed by the applicant on November 27, 2014, page 505 to 507 of the Brief.
19. 19Exhibit 13, Report of Dr. Simms, report dated April 20, 2016, page 4254 of the Brief, page 1798.
20. 20Exhibit 3, Physiatry IE report of Dr. Franks dated February 27, 2015, page 1750 of the Brief.
21. 21OT In Home Assessment report of Jeff Ford, dated February 27, 2015, page 3099, of the Brief.
22. 22Exhibit 17, Dr. Ikejiana, orthopaedic surgeon, report of September 27, 2017.