Foos Gelle v. TD General Insurance Company, 2023 CanLII 15052

Licence Appeal Tribunal

Citation: Gelle v TD General Insurance Company, 2023 ONLAT 21-001541/AABS

Licence Appeal Tribunal File Number: 21-001541/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:

Foos Gelle

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Foos Gelle, Applicant

Mireille Dahab, Counsel

Avneet Kaur, Counsel

For the Respondent:

Bonnie Redden, Alternative Dispute Resolution Specialist

John Lykos, Counsel

Roshanne Atherley, Counsel

Court Reporter:

No court reporter

HEARD: by Videoconference:

October 4th and 5th, 2022

REASONS FOR DECISION

1The applicant was involved in an automobile accident on December 6, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2“Foos Gelle”, the applicant was seat-belted when she rear-ended and collided into a Toronto Transit Commission bus, while driving with her two children. Emergency services, including paramedics and police, did not attend the scene. The applicant described that she did not strike her head and the air bags did not deploy.

Extension Request by the Applicant

3The applicant brought a motion on the afternoon of Tuesday, October 4, 2022, for the two-day hearing to continue over to Thursday, October 6, 2022, for the purpose of calling Dr. Leon Steiner as a witness. The applicant submitted that Dr. Steiner’s testimony was required to explain his psychological report in evidence. The respondent opposed the request for the extension of the hearing to October 6, 2022, submitting that lack of preparedness was the basis for the applicant’s request; that Dr. Steiner’s evidence was in the psychological report, which report by Dr. Steiner, as stated, was in evidence. The respondent submitted that the adjudicator, despite the late request, started the hearing at 8:45 a.m. to allow for Dr. Steiner’s evidence and neither the applicant nor Dr. Steiner attended at the earlier time. I denied the motion to extend the hearing to October 6, 2022, converting the hearing from a scheduled two-day hearing into a three-day proceeding for reasons which follow.

4The adjudicator on April 27, 2022, granted the applicant’s motion for an earlier hearing date on October 4 and 5, 2022, with the consent of the respondent. The parties were aware that the hearing was scheduled for two days, as they agreed to the duration of the hearing when requesting a new date in April 2022. It was not until the day before the hearing, on October 3rd, that the applicant made her initial request for accommodation to an earlier hearing start time on October 4th, in order to accommodate Dr. Steiner. The request for the extension of the hearing to October 6, 2022, was the second attempt by the applicant to arrange for Dr. Steiner’s attendance as a witness In addition, the parties agreed to exchange hearing briefs and confirmation of witnesses no later than September 2, 2022. The respondent filed their document brief on September 2, 2022. The applicant filed and exchanged their hearing brief and list of witnesses on the day before the hearing, in contravention of the agreed timelines for submission captured in the case conference order. The applicant wrote to the Tribunal on the afternoon of Monday, October 3, 2022, requesting that the hearing commence at 8:00 a.m. rather than at 9:30 a.m. as scheduled, to accommodate the availability of Dr. Leon Steiner. The adjudicator wrote to the Case Management Officer, agreed to commence the hearing at 8:45 a.m., albeit on the same date as the request was made by the applicant. However, the following day none of the parties attended at 8:45 a.m.. This late request by the applicant rendered it logistically impossible to notify the parties concerned within the time frame proposed by the applicant, so proximate to the hearing.

5On the afternoon of Tuesday, October 4, 2022, the applicant renewed their request to extend the hearing with the new proposal that Dr. Steiner’s evidence be heard on Thursday, October 6, 2022. The Tribunal denied the applicant’s motion for the extension, stating that the Tribunal would make reasonable efforts to accommodate the applicant’s request to call Dr. Steiner, within the two-day hearing period from October 4 to 5, 2022, agreed to by the parties.

6Rule 3.1(a) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (the Rules”), requires that the Rules be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party to facilitate a fair, open and accessible process and to allow effective participation by all parties. Section 2 of the Statutory Powers and Procedure Act (SPPA) provides that any rule made by a tribunal under subsection 17.1(4) of s.25(1) shall be liberally construed in order to secure the just, most expeditious and cost-effective determination on any proceeding on its merits. The Tribunal’s Rules and the SPPA provide the hearing adjudicator with broad discretion to ensure that hearings are procedurally fair and to allow for both parties’ meaningful participation.

7Adjournments must be granted in exceptional circumstances. If the Tribunal granted adjournments in all cases when counsel could not organize their witnesses within agreed on and Tribunal ordered time frames, it would create a backlog at the Tribunal and would inhibit other applicants’ access to efficient, proportional, and timely resolution of the merits of their proceedings before the Tribunal. The hearing dates are scheduled far enough in the future that witnesses should be advised of their required attendance immediately after dates are set. If adjustments to the hearing dates are required, such adjustment requests should be framed in a timely manner, and not on the eve of the hearing.

8For the noted reasons, I denied the applicant’s request to add an additional hearing day. The applicant had had six months to organize and summons its witnesses to attend and present evidence in conformity with its own agreed on time frames. The tribunal accommodated the applicant to the extent of what was procedurally fair without prejudicing the respondent.

APPLICANT’S MOTION FOR RECUSAL OF ADJUDICATOR

9During the afternoon of October 5, 2022, the applicant brought a motion for the adjudicator to recuse herself by reason of an alleged apprehension of bias. She argues that the adjudicator demonstrated bias by the manner in which a number of requests by the applicant were resolved. The applicant was unprepared, as submitted by the respondent. The requests by the applicant centred around the original request for an extension of the hearing to October 6, 2022. The applicant’s summons issued in relation to the Claims Adjusters were not served by the applicant before the hearing and, as a result, the Claims Adjusters were unavailable to testify. Late during the afternoon on October 5, 2022, the applicant requested that Bonnie Redden, Claims Specialist of TD Insurance Company, be called as a witness, which the respondent consented to, however, given the lateness in the day the adjudicator offered the proviso that there was less than an hour for testimony before closing submissions, therefore, the applicant needed to plan her questions to Ms. Redden accordingly.

10The applicant stated following the Tribunal denying the adjournment/extension request, that the Tribunal was biased by reason of the denial. The applicant submitted that the Adjudicator’s decision denying the adjournment/extension request was evidence of bias against the applicant. The applicant presented the inability to serve the Claims Adjusters on October 4, 2022, and late in the afternoon on October 5, 2022, requested to question Bonnie Redden in lieu of the handling adjusters. The challenge as described by the adjudicator was that by reason of poor planning and lack of preparation on the applicant counsel’s part, as submitted by the respondent, there was less than an hour available for the purpose of Ms. Redden’s testimony, before closing submissions. When the hearing commenced on October 4, 2022, there was no discussion nor suggestion by the applicant in relation to calling Ms. Redden as a witness. Ms. Redden had not been planned as a witness by applicant’s counsel before October 5, 2022, when the applicant could not arrange the Handling Adjusters’ testimony.

11The applicant made submissions that an additional ground for the allegation of bias related to the denial of breaks during the hearing by the Adjudicator. Although the Tribunal granted reasonable break times to all parties when asked.

12The respondent submitted that the applicant was unprepared, disorganized and made unreasonable demands respecting the time and resources of the Tribunal and the parties. The respondent objected to the allegation of bias and the adjournment/ extension request, and submitted the respondent was prejudiced by the lack of preparedness of the applicant. I agree with the submissions of the respondent. As stated, the Tribunal made strong efforts to accommodate the lack of preparedness of the applicant where possible in the interests of fairness and without prejudicing the respondent. Examples of accommodating the lack of preparedness of the applicant by the Tribunal included permitting the late submission of the applicant’s brief and exhibits, permitting applicant’s witnesses to testify when available within the agreed upon time frame for the hearing and permitting the applicant to call Bonnie Redden, Claims Specialist of TD Insurance Company, as a witness, although the request was made late in the afternoon of Wednesday, October 5, 2022, within a limited period remaining before the hearing concluded with closing submissions.

13The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice & Liberty v. Canada (National Energy Board) at paragraph 394:¹

The test for whether a reasonable apprehension of bias exists is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly.

14The Supreme Court of Canada elaborated on the definition in Wewaykum Indian Band v. Canada² where it defined bias as a leaning inclination, bent on predisposition towards one side or another or a particular result. The Court states that in order to overcome the presumption of impartiality, a party alleging an actual or a reasonable apprehension of bias must establish the presence of serious grounds.³

15The threshold for a finding of real or perceived bias is high, and there must be more than mere suspicion. Rather, cogent evidence is needed. Further, the cumulative effect of all the adjudicator's conduct, comments and interventions must be assessed to rebut the strong presumption of impartiality.⁴

16The respondent opposed the applicant’s motion that I recuse myself based on a reasonable apprehension of bias and submits that the high threshold has not been met by the applicant. I agree with respondent’s submissions and I disagree with the submissions of the applicant.

17The applicant has failed to establish that there was a reasonable apprehension of bias in my decision to deny the adjournment/extension request and end the hearing on October 5, 2022, as requested by the applicant in April 2022. The applicant submitted that I was loud, disrespectful, and interrupted both counsel for the applicant Ms. Kaur and Ms. Dahab. The respondent described that it was both applicant’s counsel Ms. Kaur and Ms. Dahab who spoke loudly over the adjudicator, and who were disrespectful and unprepared. The applicant’s two counsel, Ms. Dahab and Ms. Kaur, left the videoconference hearing prematurely submitting bias on the part of the Adjudicator before the hearing closed at 5:00 p.m. on Wednesday, October 5, 2022, without completing their closing submissions. In addition, although Bonnie Redden, Claims Specialist, agreed to provide evidence, she was not summoned as a witness by the applicant and her testimony was not of any assistance explaining the handling adjusters’ decisions, who were not personally served with the summons by the applicant. There was limited time available for Ms. Redden to be questioned, however, the time offered did not result in any evidence being led which was helpful in explaining the decisions of the handling adjusters who were not served with the summons.

18I agree with the submissions of the respondent that applicant’s counsel loudly spoke over me when I made my ruling on the motion to deny the request to adjourn the hearing process; applicant’s counsel were disrespectful and left the hearing process prematurely demanding my recusal.

19As the hearing adjudicator it is completely within my discretion to make procedural rulings which ensure the fair outcome of the matter. The fact that I made decisions that the applicant disagrees with does not demonstrate that there was a reasonable apprehension of bias. The Tribunal’s authority to make decisions to ensure a fair outcome and the ability to control its process are clearly defined in the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (“Rules”) the Statutory Powers and Procedures Act (“SPPA”).⁵

SUBSTANTIVE ISSUES IN DISPUTE

20The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 8, 2022, as a result of suffering a complete inability to carry on a normal life within 104 weeks after the accident?
3. Is the applicant entitled to $3,696.50 for chiropractic treatment, proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) denied on January 24, 2020?
4. Is the applicant entitled to $1,977.05 for chiropractic treatment, proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) denied on August 11, 2020?
5. Is the applicant entitled to $1,384.70 for chiropractic treatment, proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) denied on October 1, 2020?
6. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Novo Medical Services in a treatment plan denied on August 24, 2020?
7. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

21The applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, entitlement to treatment for the applicant’s injuries beyond the $3,500.00 MIG limit and the MIG, which has been exhausted.

22The applicant is not entitled to payment of a Non- Earner Benefit (NEB) as she has not demonstrated a complete inability to carry on a normal life during the period in dispute.

23The applicant is not entitled to any treatment plans in dispute.

24Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Issue 1: Minor Injury Guideline

25Section 3(1) defines “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury.” Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury.

26Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities, that the injuries are beyond the MIG.

27The onus of proving entitlement to disputed benefits beyond the $3,500.00 limit of the MIG rests with the applicant.

PRE-EXISTING CONDITION

28The applicant submitted that her pre-existing physical and psychological injuries should take her out of the MIG. For this to occur, the provisions of section 18(2) of the Schedule must be met. Section 18(2) requires that a person’s health practitioner provide compelling evidence of a pre-existing condition which was documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the MIG. The respondent submits that the applicant’s injuries are within the MIG.

29This section has been considered in previous cases before the Tribunal. In 16-001517 v Royal Sun Alliance Insurance, Adjudicator Sandeep Johal stated, “The presence of pre-existing conditions alone is not sufficient to remove the Applicant from the MIG. The Applicant bears the onus and must adduce evidence to demonstrate that the pre-existing condition prevents him from achieving maximal recovery within the MIG.” ⁶ In T.S. v Aviva, Adjudicator Manigat held that, “to move beyond the MIG, the applicant must demonstrate that his pre-existing medical condition…documented by a health practitioner before the subject accident will prevent him from achieving maximal recovery under the MIG’s limits if he is limited to the goods and services authorized under the MIG."⁷

30The applicant submits that she had pre-existing psychological conditions following the accident in February 2017. In addition, the applicant submits that she was compelled to cease her studies for a month to address her physical injuries and chronic pain. She submits that she should not have been restricted to the MIG because of her injuries and impairments resulting from the motor vehicle accident. The respondent submits that the applicant has not provided evidence that her injuries fall outside the MIG and the handling adjusters properly adjusted the file in relation to the applicant’s physical injuries and psychological injuries and impairments.

31The respondent submits that the applicant suffers from a predominantly minor injury as defined by the Schedule and has not provided any compelling medical evidence that she suffers from a pre-existing condition that would prevent her from achieving maximal medical recovery within the Minor Injury Guideline (“MIG”). The respondent submits that the applicant has not provided any compelling medical evidence that the applicant’s injuries fall outside of the MIG or that she suffered any pre-existing psychological or medical impairments before the accident.

32The respondent relies on the IE reports of Dr. Ralph Lubbers, Dr. Inderdeep Manhas, and Occupational Therapist, Mr. Andrew Phillips, in addition to the Clinical, Notes and Records (CNR’s) of the applicant’s family doctor Dr. Nina Malayil and the CNR’s from the Brampton Urgent Care Centre demonstrating insufficient evidence of a pre-existing condition preventing the applicant from achieving maximal recovery within the MIG nor has the applicant provided compelling medical evidence that her injuries fall outside the MIG. I find for reasons that follow that the applicant did not demonstrate, on a balance of probabilities, that the medical and rehabilitation benefits permitting her maximal medical recovery are beyond the $3,500.00 limitation of the MIG, which has been exhausted.

PSYCHOLOGICAL IMPAIRMENT

33The applicant’s claim for removal from the MIG is described as based on her pre-existing psychological issues, which she contends worsened because of the accident. In turn, she submits that these impairments justify removal from the MIG. To escape the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically significant psychological distress. I find that the applicant has provided insufficient evidence, on a balance of probabilities, to demonstrate that she has psychological impairments preventing maximal medical recovery if she is kept within the MIG. I find the applicant has provided no persuasive evidence of a pre-existing psychological condition, exacerbated by the accident.

34In his report dated June 5, 2017, Dr. Arif Syed⁸ opined following a car accident in February 2017, that the applicant suffered from chronic major depression, anxiety attacks, chronic pain disorder, chronic post traumatic stress disorder, performance anxiety and provisional Attention Deficit Hyperactivity Disorder (ADHD). The Tribunal notes that there is no mention of pre-existing psychological disorders in Dr. Malayil’s CNR’s, including an Antenatal record, completed by the applicant and issued by the Ontario Ministry of Health, dated March 11, 2017,⁹ showing that the applicant describes herself as suffering no psychosocial disorders, including emotional depression. The applicant did not indicate to her family physician before the accident that she suffered any pre-existing psychological disorders from the time when she came into Dr. Nina Malayil’s care in September 2016. In addition, the CNR’s provided by the Brampton Urgent Care Centre show the applicant frequently attended the clinic in years previous to the subject accident, without describing psychological impairments.

35The Tribunal finds the reports of Dr. Arif Syed to be unreliable since there is nothing in the CNR’s of the family physician, Dr. Malayil nor in the CNR’s from the Brampton Urgent Care Centre, corroborating the medical evidence of Dr. Arif Syed in his reports of June 2017 and June 2018. The Tribunal notes that a pre-existing medical condition will be documented by a health practitioner before the subject accident, demonstrating that the applicant will be prevented from achieving maximal recovery under the MIG’s limits. The reports of Dr. Arif Syed offer diagnoses which have no previous background medically based on the noted CNR’s. The Tribunal, therefore, assigns Dr. Arif Syed’s reports completed on June 5, 2017, and on June 19, 2018, no evidentiary weight since the Tribunal finds that if the medical conditions listed in Dr. Syed’s correspondence were not referenced by the family physician nor at the Brampton clinic, as symptoms of underlying mental health disorders, there is no evidence of a substantive and residual post-traumatic symptomology or clinically significant psychological distress, to support Dr. Arif Syed’s diagnoses. In addition, Dr. Arif Syed’s report dated June 19, 2018, opines that the applicant had a medical illness which gradually and steadily improved to the point where she is in remission. Dr. Syed opined that it was not expected that medical factors will adversely affect the applicant’s ability to pursue her education.¹⁰ The Tribunal notes that the medical report prepared on June 19, 2018, was for the purpose of permitting the applicant to pursue her nursing studies.

36Dr. Leon Steiner,¹¹ executed a Psychological Assessment of the applicant on September 18, 2020. The report is based on information obtained by means of a telephone interview, which included a chronic pain questionnaire, automobile anxiety inventory, generalized anxiety disorder 7-item scale, pain self-efficacy questionnaire and patient health questionnaire. Dr. Steiner comments that the applicant’s affect was stable throughout the assessment and her speech rate and volume were within normal limits¹². However, Dr. Steiner concludes that the applicant is suffering from a number of psychological impairments without reference to the family physician Nina Malayil’s CNR’s or the CNR’s from the Brampton Urgent Care Centre, which show no such background of any psychological impairments before the accident.¹³ Dr. Steiner reports that, in the nine months post-accident, the applicant continues to suffer from chronic pain, depressed and anxious mood, flashbacks, ruminative thoughts, irritability, disturbed sleep, paucity of energy, negative cognitions, social withdrawal, cognitive impairment, and elevated anxiety when travelling in a motor vehicle.

37The Tribunal finds that Dr. Steiner’s Psychological Assessment is less reliable than the evidence of Dr. Ralph Lubbers who prepared an IE Psychological Assessment and Addendum report. Dr. Lubbers’ Addendum report expressly considers Dr. Steiner’s report, in addition to the CNR’s of the family physician Dr. Nina Malayi and the CNR’s from the Brampton Urgent Care Centre. Dr. Lubbers interviewed and met the applicant in person as opposed to over the telephone. The Tribunal accords less weight to Dr. Steiner’s opinion based on a telephone interview since Dr. Steiner was unable to observe the applicant during the meeting, for the purpose of ensuring the independence of the applicant’s responses and that she had no reference materials aiding her response to questionnaires. Dr. Lubbers testified at the hearing and his opinions were tested under examination and cross-examination and his original findings in his initial assessment report remained consistent and unchanged.

38At the time when Dr. Ralph Lubbers initially met with the applicant for an in- person evaluation, on June 19, 2020, he opined at the conclusion of the evaluation that the applicant did not meet diagnostic criteria for a specific phobia, mood disorder, Post Traumatic Stress Disorder (PTSD) or panic disorder. He opined that the applicant did not meet diagnostic criteria for a DSM-5 mental or behavioural disorder and associated clinically significant psychological impairment due to involvement in the index accident. In his addendum report dated February 25, 2021, Dr. Lubbers reviewed the Psychological Assessment of Dr. Leon Steiner and the CNR’s of Dr. Malayil and he was unable to account for the divergence in opinion with Dr. Steiner respecting the presence of any psychological impairment which was accident-related, other than to note that at the time of his evaluation in June 2020, the applicant expressed disinterest in formal psychological treatment to address her accident injuries and did not present with evidence of a clinically significant psychopathology.

39I am not persuaded, on a balance of probabilities, that the applicant has established she suffers from a psychological impairment as a result of the accident. The applicant stated to Dr. Ralph Lubbers during his evaluation of the applicant on June 19, 2020, that she had pre-existing injuries.¹⁴ In review of the evidence, I find that there is no mention of pain, depression or anxiety in the clinical notes and records from the Brampton Urgent Care Centre from 2016.¹⁵ Likewise, in the clinical notes and records, of the family doctor, Dr. Nina Malayil there is no mention of pain, depression or anxiety before the accident.¹⁶ Dr. Lubbers opines that there is no compelling evidence of a pre-existing medical condition that would prevent the applicant from achieving maximal recovery of her minor injury. Dr. Lubbers opines that his evaluation did not reveal evidence of a pre-existing psychological/mental health condition preventing achievement of maximal recovery from any accident-related injury if subject to the $3500.00 limit, from a psychological/mental health perspective.¹⁷

40Dr. Ralph Lubbers¹⁸ was qualified as an expert witness in Psychology at the hearing where he provided viva voce testimony with respect to his “IE” report dated January 8, 2021. Dr. Lubbers’ assessment was for the purpose of determining whether the applicant had sustained a “minor injury” because of the accident in December 2019. The applicant testified that following the accident she had a fear of driving.¹⁹ In March 2020, the applicant’s spouse purchased a second family vehicle. However, the applicant stated that she did not drive the vehicle which she stated was uninsured and remained idle. The applicant testified that there were plans with her husband for her to begin driving during the pandemic restrictions, but this never occurred.

41The applicant stated to Dr. Lubbers that she was experiencing issues with pain and depression before the December 6, 2019,²⁰ motor vehicle accident, following an earlier February 2017 motor vehicle accident.²¹ The applicant testified that she completed her nursing degree, including placement, following the December 2019 accident but she described anxiety and depression, in addition to issues with her sleep.

42The applicant completed an interview and evaluation with Dr. Lubbers, in addition to psychometric testing. Psychometric testing and the evaluation by Dr. Lubbers resulted in Dr. Lubbers opining that the applicant did not present with a clinically-significant anxiety disorder.²² The applicant’s thought structure was described by Dr. Lubbers as rational and goal-directed. Dr. Ralph Lubbers opined that the applicant’s presentation constituted a largely normal non-psychopathological response to the accident events and current circumstances. Dr. Lubbers opined that the applicant did not meet the full diagnostic criteria for a DSM-5 mental or behavioural disorder and associated clinically significant psychological impairment.²³ Dr. Lubbers stated that the results of his evaluation did not reveal the presence of a diagnosable DSM-5 mental or behavioural disorder and associated clinically significant psychological impairment due to involvement in the accident. Dr. Lubbers opined that there was no evidence of a pre-existing psychological/mental health condition that would prevent achievement of maximal recovery if subject to the $3500.00 MIG limit, from a psychological and mental health perspective.²⁴

43I prefer the evidence in Dr. Lubbers’ assessment and addendum report following his in-person interview and assessment of the applicant on June 19, 2020, whereas Dr. Leon Steiner’s assessment of the applicant was completed entirely over the telephone on September 16, 2020. An assessment conducted entirely over the telephone does not permit the Psychologist to visually examine behaviour or ensure the independence of the applicant’s responses. In addition, as noted, Dr. Lubbers prepared an addendum reviewing additional documentary information including Dr. Steiner’s report.²⁵ In February 2021, Dr. Lubbers describes that having reviewed additional reports and clinical notes and records, he maintains his previous opinion relating to the applicant’s mental health, that his evaluation did not reveal the presence of a diagnosable DSM-5 mental or behavioural disorder that would fall outside of the definition of minor injury as outlined in the Schedule. I find for the reasons stated that the applicant has neither a pre-existing psychological condition that would prevent her maximal recovery, nor a psychological impairment or condition, which would remove her from the MIG.

PHYSICAL IMPAIRMENTS

44As described in the analysis of the objective medical evidence, the Tribunal has reviewed the CNR’s of the applicant’s family doctor Dr. Nina Malayil and the CNR’s from the Brampton Urgent Care Center. The applicant testified that the day after the motor vehicle accident, she visited a walk-in clinic to address neck, shoulder and back pain, as opposed to visiting her family doctor, Dr. Nina Malayil. The applicant went to the Brampton Urgent Care Centre on December 7, 2019,²⁶ where she reported neck and lower back pain. She returned to the Brampton Urgent Care Centre on December 11, 2019, reporting an improvement in neck and upper back pain although she stated that the pain had not resolved.²⁷

45The clinical notes and records of the applicant’s family doctor, Dr. Nina Malayil,²⁸ describe that the applicant missed a telephone appointment on December 18, 2019, twelve days after the motor vehicle accident. The notes and records describe that the applicant contended that she would make another appointment the following day, however, there is no mention in the CNR’s that the applicant made a further appointment until two and a half months later on March 2, 2020, when the applicant underwent a tuberculosis skin test. The applicant returned to Dr. Nina Malayil’s office for a reading of the TB skin test on March 5, 2020, and for the first time mentions the motor vehicle accident from December 2019, and that she is receiving physiotherapy treatments. There is no record on March 5, 2020, three months after the accident, of the applicant suffering any accident-related effects of pain, anxiety or depression, which she later recounts at the end of July 2020.

46The Tribunal notes that the applicant did not describe any need for pain reduction or pain-related effects of the motor vehicle accident from December 11, 2019, to July 30, 2020. The applicant testified that because of the pandemic closure, she did not have a chance to discuss the effects of the motor vehicle accident, but the applicant was capable of scheduling and attending a telephone appointment with her family physician and she did not do so to discuss the effects of the accident. The applicant’s next appointment with Dr. Nina Malayil is on July 21, 2020, which appointment is described as addressing a skin condition. Once again on July 21, 2020, there is no mention by the applicant suffering any ill effects following the motor vehicle accident. The applicant is pre-occupied with alternate health issues which are not accident-related when she attends appointments with her family doctor to July 30, 2020. As stated, on July 30, 2020, the applicant states to Dr. Nina Malayil, for the first time in the seven months following the motor vehicle accident, resultant effects of the motor vehicle accident.

47The applicant has not undergone any diagnostic tests, inclusive of X-ray, CT scan or MRI to determine conclusively if there were any internal fractures or injuries as a result of the accident. There are no reports from a Chronic Pain Specialist. Dr. Leon Steiner,²⁹ executed a Psychological Assessment of the applicant to determine her diagnosis and treatment needs. As described, the report is based on information obtained by means of a telephone interview, which included a chronic pain questionnaire, pain self efficacy questionnaire and patient health questionnaire. However, the Tribunal places little evidentiary weight on Dr. Steiner’s opinions and finds the results of the psychological questionnaires unreliable because they were administered by telephone without ensuring the independence of the applicant’s responses and without Dr. Steiner being capable of physically observing the applicant during the interview. The Tribunal finds that the medical opinion offered in the IE assessment of Dr. Inderdeep Manhas is reliable, as it is based on an in-person examination and a thorough medical document review. The Tribunal finds, on a balance of probabilities, that there is insufficient reliable and compelling medical evidence to support the applicant’s contention that she suffers from Chronic Pain Syndrome.

48In the Insurance Examination (“IE”) report of Dr. Inderdeep Manhas,³⁰ Independent General Physician Assessment, dated November 25, 2020, Dr. Manhas describes that she interviewed and examined the applicant the same day as her report. The purpose of the assessment is to address entitlement to a Non-Earner benefit due to the applicant’s allegation that she is suffering a complete inability to carry on a normal life following the motor vehicle accident on December 6, 2019.³¹

49Dr. Manhas described in her assessment that the applicant self-reported pain in the lower cervical spine, mid-back and contralateral paravertebral pain.³² However, Dr. Manhas observed that the applicant’s cervical spine was in normal alignment with a full range of motion in the applicant’s upper and lower extremities in addition to her cervical and lumbar spine. There is an active range of motion, including full forward flexion, full extension, in addition to full left and right lateral rotation, and left and right lateral flexion. Dr. Manhas noted that the applicant’s shoulders were in normal alignment with normal range of motion. Dr. Manhas concluded that the applicant demonstrated a functional range of motion in her upper and lower extremities as well as in her cervical and lumbar spine.³³

50In the Insurance Examination report of Dr. Inderdeep Manhas,³⁴ Independent General Physician Assessment, dated February 25, 2021, Dr. Manhas’ opinion regarding the applicant’s impairments did not change from her reports on November 20, 2020, and January 8, 2021, that from a musculoskeletal perspective, the applicant's injuries resulting from the motor vehicle accident, meet the criteria of a Minor Injury, as described in the Minor Injury Guideline. On physical examination on February 25, 2021, the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries. Dr. Manhas opines that there is no compelling evidence of a pre-existing medical condition that would prevent the applicant from achieving maximal recovery of her minor injury if subject to the $3500 limit and that the applicant’s injuries are within the Minor Injury Guideline.

51The burden of proof lies with the applicant to demonstrate on a balance of probabilities, that the injuries are beyond the Minor Injury Guideline.

52Considering the absence of any mention of pain by the applicant from December 11, 2019, to July 30, 2021, in the CNR’s from the Brampton Urgent Care Centre and the CNR’s of the family physician Dr. Nina Malayi, in addition to a consideration of the findings of Dr. Inderdeep Manhas in her IE assessment respecting the applicant’s physical impairments that result from the accident, the Tribunal finds that the applicant has not established that the accident-related injuries fall outside of the MIG nor, under section 18(2), has the applicant provided convincing evidence of a documented pre-existing injury or condition combined with compelling medical evidence demonstrating that the condition precludes recovery if kept within the confines of the MIG. The Tribunal bases its decision that the applicant’s accident-related injuries fall within the MIG on the expert opinions and IE assessments of Dr. Ralph Lubbers and Dr. Inderdeep Manhas, which it found persuasive and reliable for the reasons described.

Non-Earner Benefit

53The insurer shall pay a Non-Earner Benefit (NEB) to an insured if they suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. It is well-settled, that Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, provides the framework for the NEB analysis into whether an insured suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured identifies as important. To meet the test, an insured must be continuously prevented from engaging in substantially all of their pre-accident activities and, where pain is present, it should practically prevent them from engaging in those activities.

54The applicant relies on a Disability Certificate (“OCF-3”) completed by Jason Bola, Chiropractor, of Mackenzie Medical Rehabilitation Centre, dated January 8, 2020. Jason Bola noted that the applicant suffered a complete inability to carry on a normal life due to a decrease in capacity for activities of daily living resulting from headache, injury of muscle and tendon at neck level, sprain/ strain of shoulder joint and thoracic spine, in addition to anxiety disorders. The OCF-3 includes mention that the applicant was the primary caregiver of her children at the time of the accident.³⁵

55On balance, I agree with the respondent and find that the applicant has not demonstrated that she suffers a complete inability to carry on a normal life during the period in dispute. The applicant provided statements to the Insurance Examination Assessor Mr. Andrew Phillips regarding her pre-accident activities of daily living, in conformity with the requirements of Heath v. Economical Mutual Insurance Company regarding entitlement to non-earner benefits.³⁶ The applicant’s activities and life circumstances before and after the accident were described in the applicant’s testimony but were not markedly affected based on the medical evidence and psychological evidence which the Tribunal found persuasive. Aside from the OCF-3 cited above, the applicant relies on the evidence of Dr. Leon Steiner in his section 25 report dated September 18, 2020.³⁷ The evidence is insufficient to establish a claim for the NEB.

56The applicant testified that she returned to her full-time studies in nursing in mid-January following the accident and she successfully completed her nursing program in June 2020. The applicant testified that before the accident, she was active socially and that she frequently went to the gym to exercise. She stated that since the motor vehicle accident in February 2017, and the recent accident in December 2019, she has suffered depression and anxiety preventing her from her pre-accident activities. The applicant testified that as of April 2019, she had fully recovered from the February 2017 accident. She stated that chiropractic care improved pain but that she still has neck pain, headaches and upper back pain. From a psychological perspective, the applicant testified that she suffers depression and anxiety affecting her daily living following the accident. For the reasons previously addressed by the Tribunal, the Tribunal finds that the applicant does not suffer from a physical or psychological impairment which would continuously prevent her from engaging in substantially all of her pre-accident activities.

57During cross-examination, the applicant’s explanation why she did not mention the anxiety and depression post-accident to her family physician or at a walk-in clinic, until seven months after the accident, was that she was not in a good frame of mind. In addition, the applicant provided the same explanation why she did not describe the pain that she was suffering in her neck, back and shoulders from December 11, 2019, to July 30, 2020. The Tribunal finds the explanation unsatisfactory because the applicant attended medical appointments addressing non-accident-related medical issues without any reference whatsoever to the contended pain, depression and anxiety which she alleges that she suffered during this period of time.

58The applicant reported to Mr. Andrew Phillips,³⁸ Occupational Therapist, for the purpose of the Insurance Examination (“IE”) assessment, that she was able to independently manage all of her daily tasks prior to the December 2019 accident, including personal care tasks and all housekeeping tasks. The applicant was a full-time student at the time of the accident, caring for her two children. At the time of Mr. Phillips in-home assessment on June 10, 2021, the applicant demonstrated a range of motion in her extremities, in addition to in her cervical and lumbar spine. She was able to perform upper and lower reaching in her kitchen. She was able to reach bilaterally and overhead bilaterally. She was able to continue college studies and successfully complete her nursing program. The applicant reported that she continues to drive and, as noted by Andrew Phillips, Occupational Therapist, driving a vehicle requires multiple cognitive processes such as concrete and executive cognition.

59Mr. Phillips opined on June 20, 2021, that there were no observed difficulties in information processing, comprehension nor expression within the context of the assessment. In addition, the applicant did not report any cognitive concerns. Mr. Phillips opined as a result of his in-home Insurer’s Examination assessment that the applicant does not suffer a complete inability to carry on a normal life according to the Schedule definition. The applicant demonstrated functional abilities to independently engage in substantially all her normal life activities. The applicant reported to Mr. Phillips that post-accident, she remains capable of performing her personal care tasks, in addition to light housekeeping. She testified that she is capable of caring for her children, however, her husband assists by bathing the children and transporting them to childcare. The applicant described for the purpose of heavier cleaning that her husband assists her, as does a cleaner hired to assist every two weeks.

60As stated, in the Insurance Examination report of Dr. Inderdeep Manhas,³⁹ Independent General Physician Assessment, dated February 25, 2021, Dr. Manhas’ opinion regarding the applicant’s impairments has not changed from the physician’s reports on November 20, 2020, and January 8, 2021. That from a musculoskeletal perspective, the applicant's injuries resulting from the motor vehicle accident, meet the criteria of a Minor Injury, as described in the Minor Injury Guideline. On physical examination on February 25, 2021, the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries.

61Dr. Manhas opined that from a musculoskeletal perspective, based on the evaluation and review of the concurrent Occupational Therapist report, the applicant does not suffer a complete inability to carry on a normal life as a result of the accident of December 6, 2019, as there are no objective musculoskeletal findings that would prevent her from completing all of her pre-accident duties and activities.⁴⁰

62Heath provides that certain activities attract greater weight in the analysis, and all relevant medical evidence needs to be considered, however, the applicant describes that she is able to take care of her children, perform light housekeeping and drive when necessary. She has completed her nursing degree and she states that she is seeking employment. The Tribunal does not find the applicant’s evidence persuasive that she suffers the psychological impairments or physical impairments described given the IE assessments and opinions, by Dr. Lubbers, Dr. Inderdeep Manhas, and Occupational Therapist Mr. Andrew Phillips, which IE assessments the Tribunal prefers and finds reliable for the reasons stated. However, in the event that, the Tribunal did accept as truthful the psychological and physical impairments described by the applicant, although Heath does not require a total disability, the NEB test is a stringent one and the evidence of the applicant does not meet the NEB test, offering a compelling indication that the applicant is prevented from engaging in “substantially all the activities” that she engaged in pre-accident. I find it cannot be said that the applicant suffered a complete inability to carry on a normal life during the period in dispute where it is clear that she was practically not prevented from doing most of her previous activities. I find that the applicant has not demonstrated that she is entitled to payment of the NEB in the amount of $185 per week during the period in dispute.

63When I consider the evidence tendered in relation to the claim for non-earner benefits, I am simply not persuaded the applicant has established she suffered an impairment physically or psychologically that continuously prevents her from engaging in substantially all of the activities she was ordinarily engaged in before the accident. As a result, the applicant’s claim for a non-earner benefit is denied.

CONCLUSION

64I find that the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that she is entitled to treatment for the applicant’s injuries beyond the $3,500.00 MIG limit and the Minor Injury Guideline, which has been exhausted.

65I find that the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that the applicant is entitled to a non-earner benefit of $185.00 per week from January 8, 2022, as a result of suffering a complete inability to carry on a normal life within 104 weeks after the accident on December 6, 2019.

66The applicant is not entitled to any treatment plans in dispute.

67Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

No interest is payable.

Footnotes

1. 1Committee for Justice & Liberty v. Canada (National Energy Board, 1976 CanLII 2 (SCC), 1976 CarswellNat 434 (S.C.C.)], 1976 CanLII 2, at paragraph 394.
2. 2Wewaykum Indian Band v. Canada, [2002] S.C.R. 245 (S.C.C.), paras 58 &59.
3. 3Ibid.
4. 4[The Applicant] v. Gore Mutual Insurance Company, 2019 CarswellOnt 18037, para 10.
5. 5Statutory Powers Procedure Act, RSO 1990, c S.22
6. 616-001517 v Royal Sun Alliance Insurance, 2017 CanLII 19203 (ON LAT) at para 25.
7. 7T.S. v Aviva 2020 CanLII 51295 (ON LAT) at para 14.
8. 8Respondent Document Brief, Tab 8, Report of Dr. Arif Syed, dated June 5, 2017.
9. 9Respondent’s Document Brief, Tab 7, Medical Records of Dr. Nina Malayil.
10. 10Ibid, Report of Dr. Arif Syed, dated June 19, 2018.
11. 11Applicant’s Book of Documents, Tab 1, Psychological Assessment Report, Dr. Leon Steiner, Psy.D, C. Psych., report dated September 18, 2020, and Addendum Report dated February 25, 2021.
12. 12Ibid.
13. 13Ibid.
14. 14Applicant’s Book of Documents, Tab 1, Psychological Assessment Report, Dr. Leon Steiner, Psy.D, C. Psych., report dated September 18, 2020.
15. 15Applicant’s Supplementary Document Brief, Tab 2, Clinical Notes and Records, Brampton Urgent Care Clinic.
16. 16Respondent’s Document Book, Tab 7, Clinical Notes and Records of Dr. Nina Malayil, received September 3, 2020.
17. 17Respondent’s Document Brief, Tab 11, Psychological Examination Report by Dr. Ralph Lubbers, Psychologist, January 8, 2021, p.138.
18. 18Respondent’s Document Brief, Tab 11, Psychological Examination Report by Dr. Ralph Lubbers, Psychologist, January 8, 2021, p. 127.
19. 19Ibid, p. 130
20. 20Ibid, p. 136.
21. 21Respondent’s Document Brief, Dr. Inderdeep Manhas, Independent General Physician Assessment, dated November 25, 2020,
22. 22Ibid, p. 137.
23. 23Ibid, p. 137.
24. 24Ibid.
25. 25Respondent’s Document Brief, Tab 12, Addendum to Psychological Examination Report by Dr. Ralph Lubbers, Psychologist, February 25, 2021, page 140-142.
26. 26Applicant’s Supplementary Document Brief, Tab 2, Clinical Notes and Records, Brampton Urgent Care Clinic.
27. 27Ibid.
28. 28Respondent’s Document Book, Tab 7, Clinical Notes and Records of Dr. Nina Malayil, received September 3, 2020.
29. 29Applicant’s Book of Documents, Tab 1, Psychological Assessment Report, Dr. Leon Steiner, Psyh.D, C. Psych., report date September 18, 2020.
30. 30Respondent’s Document Brief, Tab , Dr. Inderdeep Manhas, Independent General Physician Assessment, dated November 25, 2020, pp. 154 to 162.
31. 31Ibid, p. 154.
32. 32Ibid, p. 158 to 159.
33. 33Ibid, pp. 160-161.
34. 34Respondent Document Brief, Tab 13, General Practitioner Addendum Report prepared by Dr. Inderdeep Manhas, General Practitioner (Cira), February 25, 2021.
35. 35Respondent Document Brief, item #22, Disability Certificate (“OCF-3”), dated January 8, 2020.
36. 362009 ONCA 391.
37. 37Applicant’s Book of Documents, Tab 1, Psychological Assessment Report, Dr. Leon Steiner, Psy.D, C. Psych., report date September 18, 2020.
38. 38Respondent Document Brief, Tab 18, Occupational Therapist Insurance Examination by Dr. Andrew Phillips, dated June 24, 2021.
39. 39Respondent Document Brief, Tab 13, General Practitioner Addendum Report prepared by Dr. Inderdeep Manhas, General Practitioner (Cira), February 25, 2021.
40. 40Ibid, pp. 160-161.