Licence Appeal Tribunal File Number: 19-008793/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:
Ritu Sodhi
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Ian Maedel
APPEARANCES:
For the Applicant:
Seema Passi, Paralegal
For the Respondent:
Hooman Zadegan, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1Ritu Sodhi (“applicant”) was involved in an automobile accident on August 9, 2017 and sought benefits from Aviva General Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week for the period from September 7, 2017 to August 9, 2019?
ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,000.00 per month, for the period from August 9, 2017 to date and ongoing?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the respondent entitled to costs pursuant to Rule 19.1 of the Tribunal Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017)(“the Common Rules”)?
RESULT
3I find the applicant is not entitled to the benefits claimed. Given there are no overdue payments of benefits, no award, nor interest is payable.
4The respondent’s request for costs is denied.
Procedural Issues – An award and costs shall be added as issues in dispute
5The issue of an award pursuant to s. 10 of Regulation 664 was not an issue in dispute as listed on the CCRO dated August 6, 2020. However, it was listed as an issue in dispute in the applicant’s written hearing submissions. The respondent objects to this issue being added at this juncture.
6The Tribunal has the jurisdiction to add an award as an issue in dispute at any time during the hearing process. The bar to adding an award as an issue in dispute is very low. The potential delay in approving the remaining issues in dispute may have merit depending on whether the applicant meets her evidentiary onus. I find that the applicant has met this low bar, and an award shall be added as an issue in dispute. Similarly, there is no procedural unfairness to the respondent, who was afforded the opportunity to respond to this issue in its written submissions.
7The respondent sought to add the issue of costs pursuant to Rule 19.1 of the Tribunal’s Common Rules. Again, this was an issue that was absent from the CCRO. The respondent submits that the applicant caused multiple delays in the hearing of this matter, namely by requesting adjournments in order to obtain outstanding productions. Ultimately, many of these productions were not produced, despite the additional delay caused by these adjournment requests. The respondent further submits that the applicant failed to provide pinpoint reference to the documents cited, contrary to the previous Order. Finally, the respondent submits it was forced to respond to the frivolous claims, as the applicant clearly does not meet the legal test for the benefits that remain in dispute, which was communicated to the applicant on multiple occasions.
8The applicant opposes the addition of the costs issue, citing the potential additional hardship upon her if costs are awarded. However, the applicant has had the benefit of reply submissions in relation to this issue, and no other procedural unfairness has been highlighted. Pursuant to Rule 19.2, costs may also be added at any time during the proceeding. When I consider the submissions provided by the parties, I am content that the issue of costs pursuant to Rule 19.1 shall be added as an issue in dispute.
The applicant is not entitled to a NEB
9I am not persuaded the applicant has established she qualifies for a NEB in the amount of $185.00 per week for the period from September 7, 2017 to August 9, 2019.
10The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
11Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.
12In their submissions the parties referred to the decision in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). In Heath, the Court of Appeal held that the starting point for whether an applicant suffers from a complete inability to carry on a normal life will be to compare the applicant’s activities and life circumstances before the accident to their activities and life circumstances post-accident.
13The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident, to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged: see 16-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT), at paragraph 17.
14The applicant relies on the Disability Certificate (“OCF-3”) completed by Dr. S. Shahani, chiropractor, dated August 18, 2017. This document details her accident-related injuries. It also indicated the applicant had a complete inability to carry on a normal life, for an estimated duration of 9-12 weeks.
15The applicant further relies on the In-Home Assessment Report prepared by occupational therapist Yalda Mobed, dated May 18, 2018. This report detailed how the applicant was limited by pain in her cervical and lumbar range of motion, leading to functional limitations. These limitations were evident in personal care (shaving and nail care), household activities (bending low and reaching high), meal service (clearing and setting the table, washing dishes, and cleaning), and an inability to participate in social or leisure activities.
16However, I find the May 18, 2018 In-Home report fails to provide any comparison to her pre-accident activity levels as required by Heath. Instead, there are repeated general comments like she was in “reported good health” or that she was “independent in all her basic and instrumental activities of daily living” prior to the accident. Without specific evidence of the frequency and time commitments devoted to these activities, this evidence does not otherwise meet the stringent NEB threshold established by the Schedule and in Heath. Otherwise, these subjective complaints were not corroborated by the evidence tendered.
17The respondent submits the applicant has failed to provide compelling evidence related to the complete inability threshold. The respondent characterizes the applicant’s submissions as largely self-serving and unsupported by the evidence. The illegibility of the applicant’s family physician’s records and the lack of an OHIP summary detailing medical treatment also critically weaken the applicant’s application for NEB.
18Problematically, the applicant did not otherwise provide compelling evidence related to her continuous inability to substantially engage in all of her pre-accident activities. Thus, she does not meet the complete inability threshold laid out in s. 12(1) of the Schedule. For example, the records of the applicant’s family physician, Dr. E. Szulc, are lengthy, detailing visits from May 2015 forward, but are handwritten and almost wholly illegible. Further, the applicant provides no pinpoint references to this evidence in support of her submissions which would have assisted the Tribunal.
19Not only did the applicant fail to make a case pursuant to the Heath factors, but the clinical notes and records from Caledon Physio Centre detail additional knee pain on March 27, 2019 that was a result of a fall, not the accident at issue. This raises key causation issues related to the knee injury and does not otherwise meet the “but for” test outlined in Sabadash v. State Farm et al, 2019 ONSC 1121. As a result, I find that the applicant has failed to demonstrate her impairments were caused by the accident. Otherwise, the records of Caledon Physio indicate that the applicant’s accident-related right shoulder pain improved by November 2019.
20I place limited weight on both the chronic pain report by Dr. D. Rozen and the orthopaedic medical examination report provided by Dr. T. Getahun. Both assessments were conducted in 2021, nearly four-years post-accident. Given that these were both conducted virtually, I place limited weight upon the diagnoses therein because, no in-person physical testing was conducted. While I understand that these assessments were conducted during the restrictions imposed by the COVID-19 pandemic, there have been no additional reports tendered by the applicant that outline any physical assessments related to the NEB threshold that could possibly fill in the gaps left by her failing to provide a comparison of her pre-accident and post-accident activities.
21Finally, I place limited weight upon the psychological assessment report provided by psychologist Dr. D. Peric-Todorovic dated July 16, 2018. While this report does detail diagnoses of chronic intractable pain, severe depressive disorder without psychotic symptoms, and generalized anxiety disorder, none of these diagnoses were cited by the applicant in relation to her functionality, nor her inability to engage in substantially all of the applicant’s pre-accident activities. Accordingly, the applicant has failed to demonstrate how her psychological impairments may have met the NEB threshold.
22I place significant weight upon the two Insurer Examination (“IE”) reports tendered by the respondent. Together these in-person assessments provide a clear snapshot of the applicant’s impairments within seven months of the accident. Both reports indicate that the applicant’s accident-related impairments have significantly improved, and she is largely independent with the activities she ordinarily engaged in prior to the accident, albeit with some pain.
23For example, the General Practitioner Assessment report provided by Dr. F. Loritz dated March 19, 2018 indicated the applicant demonstrated no objective impairments of a musculoskeletal or neurological nature, and diagnosed the applicant with sprain/strain injuries as a result of the accident. The report notes that the applicant described a 70% improvement in her accident-related symptoms and that she was independent with self-care and completed household chores such as grocery shopping, cooking and light housekeeping. However, while the report notes that the applicant relied on her husband for heavier household chores, the applicant otherwise reported she was not involved in any recreational activities.
24Similarly, the Psychology Assessment Report provided by psychologist Dr. S. MacKay, dated April 3, 2018, indicated the applicant reported an improvement of 40-50% in her physical post-accident complaints. The applicant reported she was able to complete self-care tasks, light housekeeping and leisure activities, which included walking around the mall and visiting with a close friend. Dr. MacKay concluded the applicant suffered from adjustment disorder with mixed anxiety and depressed mood. However, Dr. MacKay found that the applicant’s psychological injuries did not prevent her from carrying on a normal life.
25While the applicant may continue to suffer from some pain as sequalae from the sprain/strain injuries sustained in the accident, I find she has not provided compelling evidence that she suffered from any accident-related impairments that continuously prevented her from engaging in substantially all of the activities she was ordinarily engaged in prior to the accident during the period in dispute. It is well-settled that vague references to pre-accident activities are insufficient to establish the frequency and time commitments required for a baseline comparison between the applicant’s post-accident activities and pre-accident life circumstances.
26Rather, I find the applicant reported to IE assessors that her impairments had improved in the seven months post-accident and described general functionality that is contrary to her claim that she suffers a complete inability to carry on a normal life. In addition, the applicant failed to draw any causal link between her psychological impairments and the complete inability test as laid out in s. 12(1) of the Schedule. Overall, when I consider the totality of the evidence tendered with respect to the non-earner benefit, I am not persuaded the applicant has provided compelling evidence to satisfy her burden of proof.
The Applicant is not entitled to an ACB
27The applicant is not entitled to ACBs in the amount of $1,000.00 per month from August 9, 2017 to date and ongoing.
28Section 19 of the Schedule provides that ACB shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aide.
29Section 42(1) of the Schedule provides that an application for ACB must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
30Section 3(7)(e) provides that a person has “incurred” an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.
31The definition of “incurred” in s. 3(7)(e) sets out two categories of attendant care providers: professional service providers who provide services in the course of employment, occupation, or profession they would ordinarily be engaged but for the accident; and, non-professional service providers.
32For the services of a non-professional care provider to be compensable under the Schedule, s. 3(7)(e)(iii)(B) stipulates that the care provider must have sustained an economic loss as a result of providing the goods and services. In addition, under s. 19(3)4 of the Schedule, the amount of ACB payable is limited to the economic loss sustained by a non-professional care provider while, and as a result of, providing the attendant care.
33Section 20(1) of the Schedule also sets out 260 months as the maximum period of eligibility for ACB.
34The applicant relies on the Form-1 and the In-Home Assessment conducted by occupational therapist Yalda Mobed in 2018. However, the applicant’s functionality is only one component of entitlement to ACB. The attendant care services must be incurred to be payable.
35I find that the applicant has not met her onus in establishing the attendant care services were incurred. While the applicant’s submissions do make reference to the receipt of attendant care services from a personal support worker, she submitted no evidence to support her submissions. The applicant included no description of the services provided and no invoices were included as part of the evidentiary record. In the alternative, the applicant has not demonstrated that a non-professional aide sustained an economic loss as a result of providing attendant care services.
36The respondent submits that the failure to demonstrate an economic loss is fatal to this ACB claim pursuant to the Schedule. I agree. Even if I were to find that the applicant is entitled to an ACB, she is unable to recoup any ACB expenses that were not incurred. Having not incurred any expenses, the applicant is not entitled to payment.
37Additionally, the applicant reported functionality that is contrary to the May 18, 2018 report by occupational therapist Mobed. The applicant reported to the IE assessor, Dr. Loritz, that she remained independent with her self-care and contributed to her family’s daily activities following the accident. The applicant also never claimed that her existing psychological impairments identified by Dr. MacKay impacted her functional capacity and the attendant care benefit in dispute.
38Accordingly, the applicant has failed to establish that she incurred any attendant care services in the period claimed either by a professional or non-professional aid pursuant to s. 3(7)(e). Additionally, pursuant to s. 20 of the Schedule, where the maximum duration for the payment of ACB is 260 months, or five years, she has now exceeded this period and is unable to claim further ACB. Given the totality of the evidence, I cannot conclude the applicant has met her evidentiary onus in relation to the ACB. Thus, the applicant’s claim is denied.
The applicant is not entitled to an Award or Interest
39Given the applicant has failed to meet her evidentiary onus in relation to the benefits claimed, I am not persuaded the respondent unreasonably withheld or delayed payment of benefits to justify an award pursuant to s. 10 of Regulation 664. Thus, the claim for an award is denied.
40Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The respondent is not entitled to Costs
41The respondent’s request for costs is denied.
42Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high, and they are rarely awarded. Although this hearing was delayed while the applicant attempted to secure additional productions, and she failed to provide pinpoint references to the evidence in her submissions, I do not view this behaviour as meeting the costs threshold.
43In any costs analysis, I am also bound to consider the factors laid out at Rule 19.5. Specifically, I must consider the potential chilling effect an order for costs may have on similar individuals accessing the Tribunal system. I am also acutely aware that there is no mechanism to award costs against a party’s legal representative, and any costs will be borne directly by the applicant. When I consider these factors in concert with the applicant’s personal circumstances, I am not persuaded a cost award is appropriate in this case. Thus, no costs shall be awarded.
ORDER
44The application is dismissed, and I find:
i. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week for the period from September 7, 2017 to August 9, 2019;
ii. The applicant is not entitled to attendant care benefits of $1,000.00 per month for the period from August 9, 2017 to date and ongoing;
iii. Is the applicant not entitled to interest on any overdue payment of benefits;
iv. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664;
v. The respondent is not entitled to costs pursuant to Rule 19.1 of the Rules.
Released: March 6, 2023
__________________________
Ian Maedel
Vice-Chair