Citation: Mathurin v. Aviva Insurance Company, 2023 ONLAT 21-008659/AABS

Licence Appeal Tribunal File Number: 21-008659/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:

Germaine Mathurin

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Yanira E. Monterroza, Paralegal

For the Respondent: Peter Durant, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Germaine Mathurin, (“the applicant”), was involved in an automobile accident on July 13, 2019, 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 Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 10, 2019 to July 13, 2021?
2. Is the applicant entitled to a medical benefit in the amount of $2,138.86 ($3,037.14 less $898.28 approved) for psychological services proposed by Toronto Healthcare Clinic in a treatment plan/OCF-18 (“plan”) dated October 28, 2021?
3. Is the applicant entitled to a medical benefit in the amount of $3,037.14 for driving counselling proposed by Toronto Healthcare Clinic in a treatment plan/OCF-18 (“plan”) dated October 26, 2021?
4. Is the applicant entitled to interest on overdue payment of benefits?

RESULT

3The applicant is not entitled to non-earner benefits or the balance of the plan for psychotherapy.

4The treatment plan for driving counselling is partially reasonable and necessary for a total of $898.28, with interest payable in accordance with the Schedule.

ANALYSIS

Non-Earner Benefits (“NEB”)

5Section 12(1) provides that an insurer shall pay an NEB 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. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

6It is well established that the test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”). To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for an 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?

7The applicant claims entitlement to an NEB on the basis that she meets the disability test based on her reports to various assessors and her family doctor.

8I find that the applicant does not meet the disability test for an NEB. The evidence demonstrates that the applicant has some difficulty with some of her pre-accident activities but does not suffer a complete inability to engage in substantially all of her pre-accident activities.

9The applicant was not working at the time of the subject accident. She had stopped working after a prior motor vehicle accident in April 2019. According to her family doctor’s notes, she was also unable to do household chores following the April 2019 accident. However, within approximately two months of the subject accident, the applicant commenced a college program in social work.

10There is relatively little information about the applicant’s daily activities before and after the accident. She relies primarily on the psychological assessments by Ms. Ilios and Dr. Brunshaw, dated November 10, 2020 and May 16, 2021, during which she reported having difficulty with self-care such as applying cream or putting on shoes, and difficulty with chores. She reported preferring to be at home and refrained from entertaining guests or attending social events.

11The applicant also relies on a completed questionnaire for non-earner benefits, dated September 12, 2019, wherein she reported not being able to go to the park with friends for football, having to give her dog away due to difficulty walking 20-30 minutes, requiring more time to clean her home, experiencing low pain levels when doing laundry, and moderate pain when standing in the kitchen to cook.

12The applicant also points to clinical notes of the family physician, Dr. Ajisafe, where she reported little interest or pleasure in doing things, low energy, trouble sleeping, etc. However, those same symptoms were reported prior to the subject accident.

13The applicant participated in multidisciplinary insurer’s examinations (“IE”) with respect to her entitlement to an NEB. To Dr. G. Yee, orthopedic surgeon, report dated November 18, 2019, she reported that she managed her personal care without assistance, tried to manage her housekeeping and did the best she could with heavier tasks without assistance. She had resumed driving. She reported that she was not involved in any significant recreational activities prior to the accident. During an in-home assessment with Sarah Lee, occupational therapist, (report dated November 15, 2019), the applicant also reported independence with her personal care, that she lived alone in an apartment, and had recently started an 8-month course in social work. She described supportive relationships with her friends and family, and that they would visit or go to the park together. Spending time with her young nephew improved her mood. On evaluation and observation, the applicant demonstrated functional ranges of motion.

14During the psychological assessment with Dr. F. Salerno, on January 9, 2020 the applicant reported having recently started a new job as a social worker at a shelter for homeless people, 3-4 days a week, 7 to 8 hours per shift. She was separated from her husband at the time of the accident, but they reconciled in October 2019. The applicant had also commenced the 8-month program in social work, full time. She had some extensions for assignments as needed but was achieving grades in the “A+” range. She had resumed driving, but tried to avoid the highway. In terms of housekeeping, the applicant reported doing some things at the time of the accident, but not often. She reported difficulty keeping her home tidy, but was independent with personal care. She attended football games less often. The applicant spoke to her friends but didn’t see them since her accidents. She was the president of a social community group that raised funds for her country of origin. She hosted a major event in September 2019, and continued to plan activities for the group. The applicant reported that on a typical day prior to the subject accident, she would get up, have something to eat, and then sit around at home most days. Now she was getting up for class three days a week, going to work, and communicating with her husband several times a day. In terms of other meaningful activities, the applicant reported not participating in meetings for her social organization due to lack of motivation, seeing family less, and attending fewer football games.

15I am persuaded by the multidisciplinary IE reports which concluded that the applicant did not suffer a complete inability to carry on a normal life.

16Overall, the evidence does not support that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities. She was independent with personal care, performed housekeeping albeit at less frequency and with some difficulty, participated in social and activities, and resumed driving. If anything, her activity level increased somewhat post-accident, as she commenced an 8-month college program and began working a job as a counsellor.

17In light of the foregoing, I find that the applicant has not established her entitlement to NEBs.

The applicant is not entitled to the balance of the plan for psychological treatment

18The plan in the amount of $3,037.14, dated October 28, 2021 proposed twelve, 1.5 hour counselling sessions with Gajan Santhireswaran, a psychotherapist, at the rate of $149.61 per hour.

19Following an IE with Dr. Salerno, the treatment plan was partially approved, for twelve 1-hour sessions at the rate of $58.19 per hour, plus $200.00 for the form completion cost. The other fees for “documentation” of $144.10 was not approved as there was no explanation, and the maximum payable for documentation fees is $200.00. The rate of $149.61 is the Professional Services Guideline (“PSG”) rate for services provided by a psychologist or psychological associate.

20The applicant has made no submissions why the unapproved portion of the plan was reasonable or necessary, why 1.5 hour sessions were required. The applicant submits that the rate of $149.61 is in line with the PSG rate for a psychological associate, but ignores the fact that the proposed provider is a psychotherapist, not a psychologist or psychological associate. There is no prescribed rate for a psychotherapist in the PSG.

21I find the rate of $58.19 appropriate for a psychotherapist, as it is the approved rate for unregulated providers, which includes psychometrists, and rehabilitation, family, and vocational counsellors.

22The applicant has not met her burden to prove entitlement to the balance of the plan for psychological treatment.

The treatment plan for driving counselling is partially reasonable and necessary

23The treatment plan dated October 26, 2021 in the amount of $3,037.14 recommended twelve, 1.5 counselling sessions focusing on reducing anxiety when in a vehicle as a driver or passenger. The goals of the plan were to help the applicant manage her emotional response to difficulties she experienced, including travelling in a vehicle.

24It was made based on the conclusions of Ms. Ilios (psychotherapist) and Dr. J. Brunshaw (psychologist) following a driver/passenger rehabilitation assessment, dated May 16, 2021. The respondent takes issue with this report on the basis that the assessment was apparently conducted by Ms. Ilios, under the supervision of Dr. Brunshaw, but Dr. Brunshaw never met with or interviewed the applicant, and the report refers to “our opinion”, in an attempt to validate Ms. Ilios’ opinion with Dr. Brunshaw’s credentials, as Ms. Ilios being a psychotherapist is not qualified to make diagnoses.

25The respondent relies on the findings of its IE assessor, Dr. Salerno, who found that the applicant did not meet the diagnostic criteria for specific phobia with respect to vehicular travel. She continued to drive as required. She did report symptoms of increased anxiety as a passenger, but her symptoms did not meet the criteria for a diagnosis.

26I find the treatment plan is partially reasonable and necessary. The applicant has been involved in three motor vehicle accidents/incidents. The first in 2016 when she struck a pedestrian and developed anxiety about hurting others. She was involved in another in April 2019, and the subject accident in July 2019. The applicant has consistently reported that the subject accident was the most severe and worsened her anxiety symptoms. She was “terrified” to drive. The applicant has also reported experiencing panic attacks while driving to all of the psychological assessors, and feeling overwhelmed when travelling in and around vehicles. She also reported difficulty concentrating in a vehicle. She continued to push herself to drive, but only when absolutely necessary and only distances close to home. She told Dr. Salerno that she avoided the highway or being a passenger.

27Similar to above, I find that twelve, 1-hour sessions at the rate of $58.19 appropriate to address the applicant’s driving and passenger anxiety, as well as the $200.00 documentation fee. There is no explanation for the additional fee of $144.10. The applicant submits that the hourly rate in the treatment plan is in line with the PSG, however the provider is not a psychologist. I find the rate of $58.19 appropriate for services provided by a psychotherapist, as it is the approved rate for unregulated providers, which includes psychometrists, and rehabilitation, family, and vocational counsellors.

28I find the treatment plan for driving anxiety is partially reasonable and necessary for a total of $898.28.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the plan for driving counselling.

ORDER

30The applicant is not entitled to non-earner benefits or the balance of the plan for psychotherapy.

31The treatment plan for driving counselling is partially reasonable and necessary for a total of $898.28, with interest payable in accordance with the Schedule.