Citation: Hess v. Gore Mutual Insurance Company, 2022 ONLAT 20-004457/AABS

Licence Appeal Tribunal File Number: 20-004457/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:

Irene Hess

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Irene Hess, Applicant

For the Respondent:

Gore Mutual Insurance Company

Steve Coons, Counsel

Court Reporter:

Sharon Kemp

HEARD: by Videoconference and teleconference

January 18 and 19, 2022

OVERVIEW

1The applicant was involved in an accident on October 13, 2017. She sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Pursuant to the Case Conference Order of Adjudicator Watt dated April 30, 2021 (the “Order”), this application proceeded to a combined videoconference and teleconference hearing before me.

ISSUES IN DISPUTE

3The issues to be decided in the hearing are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 13, 2017 to date and ongoing?

2. Is the applicant entitled to $1,571.71 for physiotherapy services, proposed by Petrolia Physiotherapy in a treatment plan/OCF-18 (“plan”) dated August 28, 2018?

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

RESULT

4I find that the applicant is not entitled to the non-earner benefit, physiotherapy treatment or interest claimed.

ANALYSIS

Issue i: Non-earner benefit

5The test for entitlement to a non-earner benefit is set out in section 12(1) of the Schedule. The applicant must prove that she suffers from a complete inability to carry on a normal life within 104 weeks of the accident.¹ Section 3(7)(a) of the Schedule states that a person suffers from a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.²

6In order to establish entitlement to non-earner benefits, a variety of factors must be taken into consideration. The Court of Appeal confirmed in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, at para. 50, that the analysis of the evidence should include the following³:

i. A comparison of the applicant’s activities and life circumstances before and after the accident.

ii. A consideration of pre-accident life and circumstances involves more than a snapshot of life in the timeframe immediately before the accident, but rather an assessment of the activities and circumstances over a reasonable period prior to the accident.

iii. All of the pre-accident activities in which the applicant ordinarily engaged in should be considered. Greater weight may be assigned to those activities which the applicant identifies as being important in his pre-accident life.

iv. It is not sufficient to demonstrate that there were changes in post-accident life. Rather, it is incumbent to establish that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.

v. To look at whether the applicant is “engaging in” an activity, the activity must be viewed as a whole. The manner in which an activity is performed, and the quality of performance post-accident must also be considered.

vi. An inquiry into whether the degree of pain experienced either at the time or subsequent to the activity is such that the applicant is practically prevented from engaging in those activities.

7The applicant did not submit any documentary evidence and nor did she call any witnesses. A few days before the subject accident, the applicant travelled to Hamilton to take her brother for an appointment. On October 13, 2017, she decided to go back home. As she was driving, another car ran through a stop sign and hit her car. She testified, “the backseat came loose and hit me in the back and neck. I remember my knees going into the dashboard. The left leg twisted back. The sole of the foot was facing the ceiling of the car.”

8The applicant stated that she cannot function like how she used to before. She submitted that travelling was very important to her because it allowed her to help others. Prior to the subject accident, the applicant used to travel to Hamilton to take care of her brother. She had been taking care of him since the passing of her parents in 1997. She would do his laundry, shopping and go with him to appointments. She stated that she used to go approximately three times a month. However, after the subject accident, she developed driving anxiety and does not take the highways. She hardly went to see him because she couldn’t drive for long distances. She enlisted the assistance of others to drive her. She only saw her brother two or three times after the subject accident. Unfortunately, he passed away in 2019.

9Prior to the subject accident, the applicant also did her own housekeeping, laundry, grocery shopping, took care of her cats and cooked meals. She submitted that she experiences pain in her knee, left foot, back and neck. Furthermore, it hurts to bend, she cannot lift heavy things like she used to and does not sleep well. It is difficult to carry the groceries and she has to make the grocery bags lighter by re-distributing the items. She also requires help with housekeeping. She stated that she has to be careful when doing the things that she was able to do and has been asking for more help. She testified that a woman assists her with the housekeeping and brings in the cat litter, water, and any other items that she has in her trunk.

10During the cross-examination of the applicant, she confirmed that after the subject accident, she has continued to look after her cats, cook, do groceries, laundry and attend church. She also continues to drive even though she doesn’t enjoy it as much and avoids the highways. Moreover, she confirmed that she was receiving assistance with her groceries and housekeeping prior to the subject accident.

11The only record that supports the applicant’s claim for a non-earner benefit is the disability certificate (‘OCF-3’) completed by Dr. Nathan Taylor, family physician. The OCF-3 was submitted by the respondent. The OCF-3 notes that the applicant has a soft tissue knee and ankle injury. Under part 6 of the OCF-3, Dr. Taylor checked off ‘yes’ when asked whether the applicant suffers from a complete inability to carry on a normal life and whether she suffers a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. However, aside from her testimony, the applicant did not submit any evidence to support her entitlement to the non-earner benefit. Nor did she call Dr. Taylor as a witness. Without any evidence, I am unable to determine how Dr. Taylor came to this conclusion.

12The applicant asserts that she experiences pain as a result of the subject accident. As noted in Heath, where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities. Her pain is clearly manageable and does not practically prevent her from independent self-care or engagement in other activities like doing laundry and cooking. The applicant has not provided any medical evidence to substantiate that she has a complete inability to live a normal life because of this pain. The onus is on the applicant to prove on a balance of probabilities that she is entitled to an NEB, and she has failed to meet that burden. However, for completeness, I turn to the respondent’s evidence.

13In denying the applicant, the respondent is relying on the reports of Dr. Vadim Baletsky, psychiatrist, Dr. Tilak Mendis, neurologist, Dr. Stanislaw Dajczak, orthopaedic surgeon, and Mr. Joseph Sunil Morgan, occupational therapist.

14In his report dated May 23, 2019, Dr. Baletsky found that the applicant likely developed unspecified driving-related anxiety symptoms, which are progressively getting better with the exception of highway driving. He did not find that the applicant sustained an impairment that continuously prevents the applicant from engaging substantially all of the activities in which she ordinarily engaged in prior to the subject accident. Her prognosis was noted to be good from a mental health standpoint. He opined that treatment for mental health symptoms is not necessary.

15In his report dated May 31, 2019, Dr. Mendis found that from a neurological perspective, the applicant did not sustain an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged in prior to the subject accident.

16In his report dated May 10, 2019, Dr. Dajczak opined that the applicant suffered from right knee sprain, left foot sprain, lumbar sprain, WAD type 2 and right shoulder sprain as a direct result of the subject accident. However, these have resolved. He found that the subject accident did not prevent the applicant from engaging in substantially all activities which engaged in prior to the subject accident.

17In his report dated May 7, 2019, Mr. Morgan found:

From a physical and functional standpoint, Ms. Hess demonstrated functionally adequate ranges of motion in her spine and extremities and upper extremity strength mobility and tolerances to complete all of her personal care and indoor housekeeping tasks. Her tolerances for functional positions such as standing, and walking was observed to be functional for her daily tasks. Her muscle strength though slightly reduced Grade 4 however functional for several pre MVA tasks. She demonstrated the ability to lift/carry, push/pull as would be required to completing [sic] some of her housekeeping tasks. Ms. Hess was cooperative, and it is this assessor’s opinion that she provided reliable effort during functional testing. There was consistency between reported and observed levels of functioning. Functionally, Ms. Hess was able to stand independently and walk at a normal pace without any reliance on a gait aid. She was able to complete a crouch with some furniture support to access near floor levels. She was able to manage stairs with an alternating stepping pattern and railing for support. Ms. Hess was observed to sit continuously for 75 minutes, stand continuously for 5-10 minutes on a few occasions, walk continuously for 10-15 minutes, and can access all areas of her home. She was able to cross her legs over one another and she was able to place her ankles over opposite knees. She reported that she continues to avail assistance from her weekly hired help with some of her housekeeping tasks i.e., transportation of groceries, floor cleaning, cleaning of bathrooms, dusting and vacuuming to her pre MVA levels.

18Mr. Morgan opined that the applicant is not continuously prevented from engaging in substantially all of her self-care productivity and leisure pursuits as she did prior to the subject accident. He stated, “Ms. Hess demonstrated physical and functional abilities at the time of this assessment as well as by her own reported functioning levels, it is this assessor’s opinion that she does not demonstrate functional limitations that would completely or continuously limit her ability to perform her personal care tasks housekeeping and outdoor maintenance tasks (i.e., seasonal gardening) and leisure pursuits.”

19At the hearing, he testified, “In terms of the final disability test, the person has to be continuously prevented from doing all these tests: self care, self productivity and leisure. The impairments from the MVA have to prevent her from engaging in these activities. I found that the impairments from the MVA didn’t prevent her from engaging in activities. She was presenting at pre MVA levels.” During the cross-examination of Mr. Morgan, the applicant informed the Tribunal that she agreed with his findings.

20The Applicant must prove that she is unable to engage in substantially all of her pre-accident activities. Furthermore, it is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”⁴.

21Based on the evidence before me, the applicant continues to engage in substantially all of her activities of daily living as she did prior to the accident. Therefore, based on the totality of the evidence before me, I find that the Applicant has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

Issue ii: Physiotherapy

22In order to be entitled to a medical benefit under s. 15 of the Schedule, the onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary as a result of the subject accident.

23The applicant submitted that she needs the physiotherapy because it strengthens her body, which helps with her daily living. She stated that, “I do need help. There is a change in how I was before the surgery and how I am living now. I cannot do the things I did before. I need help.”

24The respondent submitted that having pain or an accident does not entitle someone to physiotherapy. The applicant has not provided evidence to suggest why the treatment plan is reasonable and necessary. Furthermore, the applicant was having ongoing issues with osteoarthritis and her right knee prior to the subject accident. She was attending physiotherapy for these issues before she was involved in the subject accident.

25The respondent stated that, “She has not established how this treatment plan is reasonable and necessary as a result of the MVA. It may very well be necessary for her osteoarthritis, but she has to prove that it’s reasonable and necessary in relation to the accident. The evidence does not meet that burden.” The respondent asserted that the evidence that has been presented thus far does not link the need for physiotherapy to the subject accident.

26I find that the applicant is not entitled to physiotherapy for the following reasons. The applicant has not satisfied me that the treatment plan for physiotherapy is reasonable and necessary as a result of the subject accident. Nor has she submitted any documentary evidence or called any witnesses in support of her case.

27The respondent is relying on an orthopaedic assessment by Dr. Dajczak dated October 11, 2018. Dr. Dajczak found that the treatment plan was not reasonable or necessary. He opined that the applicant’s injuries from the subject accident, such as the right knee sprain, left foot sprain, Iumbar sprain, whiplash associated disorder type 2 and right shoulder sprain, had resolved. He found that the osteoarthritis in her left foot was a longstanding issue. The applicant was undergoing a total knee arthroplasty of her right knee, which was her most painful issue and unrelated to the accident.

28He stated, “The prognosis is excellent as these conditions of sprain/strain have resolved. The client has residual degenerative changes osteoarthritis of her knee as well as foot and ankle. Her neck and shoulder do not bother her at this time. The client has degenerative disc disease of lumbar spine, which is an ongoing pre-existing condition.”

29The applicant’s osteoarthritis and pain-related complaints are documented prior to the subject accident in Dr. Taylor’s clinical notes and records (‘CNRs’). For example, in the CNRs dated May 11, 2016 (Exhibit A)⁵, it is stated that there is a history of severe osteoarthritis and that her knee needs to be replaced. The CNRs dated August 9, 2016 (Exhibit B)⁶ noted that the applicant was experiencing sharp constant back pain with activity, which radiated down both legs. It was also noted that she has a history of osteoarthritis. The pain was worse with walking and standing. The CNRs from May 9, 2017 (Exhibit D) noted that the applicant was experiencing swelling in her legs and feet.

30The applicant testified that she underwent her second knee replacement surgery on August 11, 2021. While I acknowledge that the applicant may require additional physiotherapy, I am not persuaded that she requires it as a result of the injuries sustained in the subject accident. Based on Dr. Dajczak’s report, the injuries from the accident have resolved. I prefer Dr. Dajczak’s report because he reviewed the applicant’s history and conducted a series of tests, which showed that the applicant’s injuries from the subject accident had resolved. Moreover, based on my review of the evidence and testimony, I find that the applicant required knee surgery prior to the subject accident due to her osteoarthritis. It was not because of the injuries sustained in the subject accident.

31The applicant did not submit any medical evidence or expert opinion to refute these findings, and nor has she advanced any evidence that proves on a balance of probabilities that additional physiotherapy is reasonable and necessary. The applicant has not met her onus.

INTEREST

32Since I did not find any benefit to be payable, no interest is applicable. Therefore, the applicant is not entitled to any interest.

CONCLUSION

33For the reasons outlined above, I find that:

a. The applicant is not entitled to a non-earner benefit of $185.00 per week from November 13, 2017 to date and ongoing.

b. The applicant is not entitled to $1,571.71 for physiotherapy services, proposed by Petrolia Physiotherapy in a treatment plan/OCF-18 (“plan”) dated August 28, 2018.

c. As no benefits are overdue, the applicant is not entitled to interest.

34Accordingly, I dismiss the application.

Footnotes

1. 1Statutory Accident Benefits Schedule, O Reg 34/10
2. 2Ibid.
3. 32009 ONCA 391 at para 50.
4. 4Supra note 3 at para. 50
5. 5Respondent’s document brief, Exhibit A, CNRs of Dr. Nathan Taylor dated May 11, 2016 at p.454
6. 6Ibid at p.451