Citation: Nevins v. Aviva General Insurance Company, 2023 ONLAT 20-012341/AABS

Licence Appeal Tribunal File Number: 20-012341/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:

Una Nevins

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Michael Krylov, Counsel

For the Respondent:

Rajesh Mohan, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Una Nevins (the “applicant”) was involved in a motor vehicle accident on August 2, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the resulting dispute.

2The applicant submits that she suffers from physical impairments as a result of the accident that entitle her to a non-earner benefit (“NEB”), and that a treatment plan for physiotherapy services that has been denied by the respondent is reasonable and necessary. The respondent argues that the applicant has not proven her entitlement to an NEB and that the denied treatment plan is not reasonable and necessary.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. Is the applicant entitled to an NEB in the amount of $185.00 per week from August 30, 2019 to date and ongoing?

2. Is the applicant entitled to $4,395.98 for physiotherapy services, recommended by Better Body Fitness Rehabilitations in a treatment plan/OCF-18 dated September 28, 2020?

RESULT

4I find that:

i. The applicant is not entitled to an NEB.

ii. The applicant is not entitled to $4,395.98 for the physiotherapy services treatment plan in dispute.

ANALYSIS

The Non-Earner Benefit (NEB)

5I am not persuaded that the applicant has established that she is entitled to an NEB, as she has not proven that she suffers from a complete inability to carry on a normal life.

6Section 12(1) of the Schedule 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.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally requires a comparison of the applicant’s pre- and post-accident activities.

7There is no evidence of any ongoing impairment that would meet the NEB test of a complete inability to carry on a normal life in the primary medical evidence of the applicant, the Toronto Paramedic Services and Scarborough Centenary Health Centre hospital reports from the day of the accident, and the clinical notes and records (“CNRs”) of the Malvern Medical Centre, where her family physician, Dr. Lawrence Lerner, is located. These records collectively demonstrate that the applicant sustained neck and head injuries in the collision, that she continued to experience neck, low back, right knee, and bilateral shoulder pain into December 2019, and that she was walking with the assistance of a cane as of November 11, 2019. However, there is no mention in these CNRs of cane use restricting the applicant’s activities aside from requiring her to move more slowly than usual. Nor is there any comparison of her activities before and after the accident in the CNRs, to meet the test as established in Heath.

8Oddly, the applicant relies on the insurer examination (“IE”) reports of Dr. Shafik Dharamshi, general practitioner, and Nicholas Livadas, occupational therapist, even though these documents do not support her argument. The applicant focuses on isolated aspects of these reports with regard to her injuries, pre-existing conditions, and the use of a cane, failing to appreciate that both medical experts concluded that she is not suffering from the complete inability to carry on a normal life. For example, in his report dated December 9, 2019, Dr. Dharamshi notes that the applicant’s accident-related injuries have exacerbated pre-existing back and right knee pain, as well as age-related degenerative changes in her back, but also that she is capable of performing all of her pre-accident activities of daily living. Mr. Livadas conveys the same general impression in his report, also dated December 9, 2019. He finds that the applicant inconsistently applied herself in testing and refused to take part in some testing requests during an in-home assessment on November 15, 2019. As a result, he writes that the applicant was not putting forward a full effort during testing and that she was magnifying her symptoms, despite demonstrating functional strength in all muscle groups and functional range of motion. Mr. Livadas concludes that the applicant is capable of performing all of her pre-accident “normal life tasks, to pre-accident levels of safety and independence.”

9I also assign significant weight to the conclusions of the IE reports with regard to addressing the applicant’s written submissions about being unable to take part in a number of daily activities as a result of her injuries. The applicant claims to be suffering from an inability to perform various household chores such as dusting, sweeping, and gardening, as well as more personalized activities such as taking care of her grandson in the home she shares with him and her daughter and volunteering at her church. However, these self-reported concerns are not supported by the medical evidence in the IE reports. For example, Mr. Livadas states in his occupational therapy report that the applicant is capable of continuing with all pre-accident activities, that she had resumed attending church, and that she displayed a lack of effort and symptom magnification during testing. Also, both Mr. Livadas and Dr. Dharamshi write that the applicant told them she had resumed driving. These statements conflict with the applicant’s claims that she is suffering from a complete inability to carry on a normal life. In the absence of medical evidence supporting the applicant’s assertions here, I see no reason to doubt the conclusions of the IE assessors.

10Additionally, I am not persuaded by the applicant’s argument that she is owed NEB payments for the weeks between becoming eligible for such a benefit and the date that the insurer denied the NEB claim on December 10, 2019. While s. 36(4) and s. 36(5) of the Schedule establish provisions for the payment of benefits that must be followed by insurers, there is no evidence before me to indicate that the insurer did not meet its obligations in this regard. The applicant has not provided any information supporting its assertions. For example, the applicant did not submit documents regarding the submission date of the Disability Certificate/OCF-3. The applicant also did not make any submissions regarding if the insurer made requests under s. 33(1) of the Schedule seeking added information, and if the applicant followed such requests. As a result, I do not have enough evidence to find misconduct by the insurer that would trigger s. 36(6) of the Schedule, which mandates that an insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate.

11For the above reasons, I find that the applicant has not demonstrated a complete inability to carry on a normal life as a result of the subject accident. As a result, she is not entitled to an NEB.

The Treatment Plan

12I find that the applicant has not met her onus to prove that the treatment plan in dispute in the amount of $4,395.98 for physiotherapy services is reasonable and necessary.

13To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

14The applicant does not comment on the treatment plan in her submissions, focusing solely on the NEB issue addressed above. Only the OCF-18 in dispute has been submitted, with no supporting arguments or additional medical documentation.

15The respondent submits that the treatment plan should therefore be dismissed without further analysis, arguing that the absence of evidence means that the applicant has not provided any grounds to deem this treatment plan to be reasonable and necessary. This issue was not addressed in reply submissions, either, as the applicant informed the Tribunal that no such reply would be filed.

16I agree with the respondent. Since the applicant has not submitted an argument or supporting evidence with regard to the treatment plan in dispute, and because it is the applicant’s burden to prove her entitlement to such a benefit, I cannot find said plan to be reasonable and necessary.

17For the reasons noted above, I find that the applicant is not entitled to the treatment plan in dispute.

PROCEDURAL ISSUE (COSTS REQUEST)

18In its written submissions, the respondent asked for its costs from the applicant. I am denying this request, as the respondent did not follow the provisions of Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017).

19While Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) allows for such a request in writing or orally at a hearing, the respondent did not present any arguments for costs in its submissions as is required under Rules 19.3 and 19.4. The respondent provided no reasons for its costs request, the exact amount sought, or any particulars about the conduct of the applicant that would warrant such an award, other than noting that an order is being sought for “costs fixed and payable forthwith…on a full indemnity basis” (which is also not allowed by Rule 19.6, which limits such costs to $1,000.00 for each full day of attendance at a motion, case conference, or hearing).

20For the above reasons, I am not adding costs to the issues in dispute.

ORDER

21The application is dismissed, and I find that:

i. The applicant is not suffering from a complete inability to carry on a normal life as a result of the accident, and is therefore not entitled to an NEB.

ii. The applicant is not entitled to $4,395.98 for the physiotherapy services treatment plan.