Dias v. Aviva General Insurance, 2023 CanLII 101088

Citation: Dias v. Aviva General Insurance, 2023 ONLAT 21-001439/AABS

Licence Appeal Tribunal File Number: 21-001439/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:

Chandra Dias

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Ryan M. Jeffries, Paralegal

For the Respondent: Michal Baura, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Chandra Dias, the applicant, was involved in an automobile accident on December 2, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The Applicant incorrectly identified the issues in dispute in her submissions as including a dispute concerning the applicability of the Minor Injury Guideline (“MIG”), the balance of treatment plan for psychological services that was partially approved, as well as the cost of catastrophic assessments.

3The Case Conference Report and Order dated May 14, 2021 confirms that the applicant was not subject to the MIG, and sets out the issues that are to be decided at the hearing, identified below. Further, the dispute regarding catastrophic assessments was withdrawn by the applicant according to the Motion Order dated August 30, 2022.

ISSUES

4The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit of $185.per week from December 30, 2017 to date and ongoing?
2. Is the applicant entitled to a medical benefit in the amount of $150.00 for an assistive device (back support) proposed by Mackenzie Medical Rehabilitation Inc. in a treatment plan dated February 14, 2019?
3. Is the applicant entitled to a cost of examination in the amount of $2,147.00 for an in-home attendant care assessment proposed by Mackenzie Medical Rehabilitation Inc. in a treatment plan dated January 11, 2019?
4. Is the applicant entitled to a cost of examination in the amount of $2,010.65 for a functional ability assessment proposed by Mackenzie Medical Rehabilitation Inc. in a treatment plan dated March 5, 2019?
5. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for chiropractic treatment proposed by Mackenzie Medical Rehabilitation Inc. in a treatment confirmation form (OCF-23) dated February 5, 2019?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant is not entitled to non-earner benefits or the disputed treatment and assessment plans. No interest is payable.

6The application is dismissed.

BACKGROUND

7In her submissions, the applicant indicates that she was “generally in good health” and worked as a waitress at a banquet hall prior to the accident. She submits that she was unable to return to work as a result of her accident-related injuries.

8However, the records show that the applicant had numerous pre-accident medical conditions including, hyperlipidemia, hypothyroidism, Type II diabetes, carpal tunnel syndrome, irritable bowel syndrome, fibromyalgia, atrial fibrillation, and was seeing a cardiologist regularly. Imaging of her cervical spine from October 2016 notes a history of right radiculopathy and revealed degenerative changes with mild neural foraminal narrowing. She had imaging of her bilateral knees in December 2016 due to complaints of pain. A note from her doctor, Dr. Wang, dated January 5, 2017 indicates that she was experiencing psychological stress. There are multiple references to the applicant being the main caregiver for her developmentally delayed daughter who requires full physical care. In the year prior to the accident, the family doctor suggested she return to her country of origin to receive emotional and physical support from family for herself and her daughter.

9The applicant complained of shoulder pain and underwent imaging in June 2017. She saw a neurologist in July 2017 for complaints of shoulder pain radiating down her arm, in her right hand, and a history of chronic right elbow pain. She was diagnosed with carpal tunnel syndrome. The doctor noted that testing suggested C7 radiculopathy and recommended an MRI and referral for physiotherapy.

10A cardiology consultation in July 2017 notes her medical history, and mood issues, particularly as it relates to caring for her daughter without support. The doctor noted that the applicant was on ODSP, but previously worked in a nursing home.

11Imaging of her cervical spine from July 2017 again revealed degenerative changes with foraminal encroachment at C5-6 and C6-7.

12The applicant had a consultation with a psychiatrist in August 2017. The doctor noted that she was unhappy with her life, was socially isolated, had no friends or support. She was on ODSP. She had poor appetite, disturbed sleep, physical pain, impaired concentration, fatigue, and irritability. He diagnosed major depressive disorder with significant somatic symptoms. The doctor suggested a trial of Cymbalta to target both her depressive and pain/fibromyalgia symptoms.

13The clinical notes from Dr. Wang indicate that the applicant saw her doctor four days after the accident for an unrelated issue. On December 13, 2017, she again saw her doctor for an unrelated issue, and reported that she had recently been involved an in MVA. No injuries were reported, she advised that she was applying for physiotherapy and massage and had a questionnaire for him to complete. The applicant saw Dr. Wang 11 more times with no accident-related complaints, until a visit on May 8, 2018 when she reported pain in her left upper back/shoulder. In July 2018 she reported intermittent back pain since the accident. Post-accident imaging of her lumbar spine dated July 23, 2018 was largely normal, with narrowing of the L5-S1 disc space. X-rays of her neck dated August 15, 2018 again revealed degenerative changes.

14There is a gap in the records until September 2021 when the applicant reported right shoulder pain. According to the notes, an MRI of her right shoulder reportedly revealed a partial tear and tendinosis but the report was not included in the records. In October 2021 she reported family issues in caring for her daughter, and neck pain.

15Records from 2022 document ongoing issues with the applicant’s right shoulder, and having increased low back pain after cleaning the bathroom. An entry dated February 15, 2022 notes increased pain after undergoing an insurance exam. Her pain reportedly “waxes and wanes”.

ANALYSIS

Non-Earner Benefits (“NEBs”)

16The test for entitlement to NEBs is set out in section 12(1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) 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.

17The seminal decision concerning entitlement to non-earner benefits is the 2009 decision from the Court of Appeal in Heath v. Economical Insurance Company¹ (“Heath”). The Court of Appeal outlined a set of guiding principles to be considered when determining an insured’s entitlement to NEBs. To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for NEB:

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

ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

18The applicant submits that based on a review of the clinical notes and records, she suffers “an inability to perform her activities of daily living with ease”. With respect, that is not the test for NEBs. Further, she has not identified what activities she is referring to. The clinical notes and records of the family doctor speak very little to her activities.

19I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

20In order for an insured to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must first identify the activities in which she used to engage, along with their frequency and importance.

21Having failed to identify activities the applicant values or provide evidence of the frequency and time commitments of her pre-accident activities in accordance with Heath, it is difficult to make a comparison of her pre- and post-accident ability to engage in her ordinary activities.

22Further, the respondent’s three insurer’s examination assessors found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. To Dr. S. Moshiri (psychologist, report dated March 4, 2019) the applicant reported working as a waitress 8 hours a week, but stopped two months after the accident because her vehicle was no longer working. She reported difficulty carrying heavy things and standing, but continued to bathe independently, cook, and do chores around the house. She had some memory issues, such as misplacing keys. She continued to spend time with and care for her daughter with special needs. The applicant reported that psychologically, the accident had not affected her activities of daily living.

23To Dr. Czok (physiatrist) the applicant reported that she was not employed at the time of the accident. She reported independence with her personal care, and continued to participate in household tasks but received assistance from her son and daughter. Dr. Czok examined the applicant and diagnosed a minor thoracolumbar spine sprain/strain. From a musculoskeletal perspective, no impairments were identified.

24During the occupational therapy assessment with Montana Mullane, the applicant demonstrated sufficient physical and functional abilities to engage in her pre-accident personal care, housekeeping and work activities.

25In light of the foregoing, I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

26With respect to the plan for the back support, the applicant’s submissions incorrectly identify the goals of the plan, refers to it as a plan for physiotherapy, and that it was only denied on the basis of the MIG. The applicant misidentifies the plan for a functional ability assessment as “life skills training”, and incorrectly states that the only reason for denial was the MIG, and that it should be “deemed approved” pursuant to the provisions of s. 38(8). The applicant also incorrectly submits that the only medical or other reason for the denial of the attendant care assessment was the applicability of the MIG. The applicant made no submissions on the reasonableness or necessity of the plan for $2,200.00 for chiropractic services.

27The respondent submits than the applicant has not met her burden to demonstrate that the disputed plans were reasonable or necessary. It relies on the insurer’s examination physiatry assessment by Dr. Czok dated October 26, 2018, and the multidisciplinary report of Dr. Moshiri, Dr. Czok and Ms. Mullane dated April 3, 2019. Dr. Czok diagnosed the applicant with cervical and thoracolumbar spine sprain/strain. From a musculoskeletal perspective, no ongoing impairments were identified, and further passive facility-based treatment was unlikely to yield further therapeutic benefit. The applicant was encouraged to continue her home-based stretching and exercise program. Dr. Czok determined that the proposed plans were not reasonable or necessary as there was no evidence of ongoing impairment as a result of the accident.

28The applicant was informed of the denial of the treatment plans by letters dated February 8, 2019 and April 16, 2019.

29The bulk of the evidence suggests that the applicant was able to complete her personal care and household chores. The occupational therapist did not identify functional impairments that would warrant an attendant care assessment or functional ability assessment. Dr. Czok concluded that there was no ongoing impairment and that there was likely no benefit from further facility-based treatment.

30I find that there that the applicant has not met her burden to demonstrate that any of the disputed treatment or assessment plans were reasonable or necessary.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to any of the disputed benefits, it follows that she is not entitled to interest.

ORDER

32The applicant is not entitled to non-earner benefits or the disputed treatment and assessment plans. Accordingly, no interest is payable.

33The application is dismissed.

Footnotes

1. 12009 ONCA 391.