Alexander Chan v. Aviva General Insurance Company, 2023 CanLII 17711

21-003183/AABS

Licence Appeal Tribunal File Number: 21-003183/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:

Alexander Chan

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Joshua Edmunds, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Alexander Chan (the “applicant”) was involved in a motor vehicle accident on December 5, 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 dispute.

2The applicant submits that he suffers from physical and psychological impairments as a result of the accident that entitle him to a non-earner benefit (“NEB”). He also claims that the full amount of a treatment plan for psychological services that has been partially denied is reasonable and necessary.

3The respondent argues that the applicant has not proven his entitlement to an NEB and that the denied portion of the treatment plan is not reasonable and necessary.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to an NEB in the amount of $185.00 per week from January 3, 2020 to December 5, 2021?
2. Is the applicant entitled to $1,945.00 ($3,701.88 less $1,756.88 approved) for psychological services, recommended by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated March 10, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

5I find that:

i. The applicant is not entitled to an NEB, or interest on same. ii. The treatment plan for $1,945.00 ($3,701.88 less $1,756.88 approved) is reasonable and necessary. iii. The applicant is entitled to interest on any incurred overdue amount of benefits in the treatment plan, pursuant to s. 51 of the Schedule. iv. The applicant is not entitled to an award.

ANALYSIS

The Non-Earner Benefit (NEB)

6I am not persuaded that the applicant has established that he is entitled to a NEB, as he has not proven that he suffers from a complete inability to carry on a normal life.

7Section 12(1) of the Schedule provides that an insurer shall pay a 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 in 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.

8The applicant has not provided enough medical evidence to establish that his pre-accident and post-accident activities have changed enough to warrant entitlement to an NEB. He relies primarily on a Disability Certificate/OCF-3 completed by Ahmed Afifi, physiotherapist, dated February 12, 2020 that notes the applicant’s complete inability to carry on a normal life for an expected duration of more than 12 weeks. However, while Mr. Afifi checks off the NEB box on this form, he does not explain how or why the applicant has a complete inability to carry on a normal life, merely noting that “injuries affecting most of his ADLs” [activities of daily living] are the reason for this diagnosis, along with the applicant’s decreased tolerances when standing, sitting, and walking. This is not sufficient to meet the NEB test, as it lacks both a medical analysis to support this conclusion as well as a comparison of the applicant’s pre- and post-accident activities.

9Records from the applicant’s family physician also do not indicate that the applicant suffers from a complete inability to carry on a normal life. While the clinical notes and records (“CNRs”) of Dr. Mark Shew show that the applicant sought treatment in December 2019 for neck and low back pain as a result of the accident, and that he was prescribed physiotherapy as a result of lower back tenderness, they do not note any issues with the applicant being able to carry on his regular activities. X-rays conducted at this time noted only age-related degenerative disc disease unrelated to the accident. The applicant does not mention any accident-related injuries or complaints to Dr. Shew after 2019. He also reports to Dr. Shew at an appointment on March 9, 2020 that he has been running 20 minutes every day in an attempt to lose weight. This either contradicts the OCF-3 described above or refers to a rapid recovery, as this OCF-3 notes that the applicant had challenges walking, standing, and sitting despite it being completed just a month before the applicant reported his running regimen to Dr. Shew. Either way, the applicant being able to exercise vigorously does not support, in my view, that he suffered from a complete inability to carry on a normal life post-accident.

10Further medical evidence submitted by the applicant has similar weaknesses with regards to the NEB test. Dr. Heung Wing Li, general practitioner, diagnosed the applicant on February 14, 2020 with back strain and neck sprain, and also referred him for a psychological assessment due to suspected complex post-traumatic stress disorder (“PTSD”). A psychological assessment by Dr. Sharleen McDowall, psychologist, resulted in a report dated September 15, 2021 that included a diagnosis of major depressive disorder with anxious distress as well as a vehicular phobia. This diagnosis was supported by the insurer examination (“IE”) assessment report of Dr. Shulamit Mor, psychologist, dated June 29, 2021. Dr. Mor diagnosed the applicant with a mild adjustment disorder with anxiety.

11However, even though I accept that the applicant has sustained a psychological impairment as a result of the accident, these medical reports do not provide enough evidence to meet the NEB test. Dr. McDowall’s report, for example, cites the applicant’s self-reported claims of “constant physical pain” as the primary reason why he is having difficulty with daily activities such as his ability to work, complete household chores, and attend social functions. I assign little weight to such a conclusion, as this sort of assessment is outside of Dr. McDowall’s area of expertise. This conclusion is also not supported in the CNRs of Dr. Shew, or the medical diagnostic evidence, as noted above. Further, Dr. McDowall does not state that the applicant suffers from a complete inability to carry on a normal life. Rather, she says that the applicant’s psychological impairment is impeding his ability to function in his daily life. Dr. McDowall also does not specifically compare the applicant’s pre- and post-accident activities to demonstrate how he has been impeded in his daily activities. As a result, Dr. McDowall does not provide enough evidence to meet the NEB test.

12The same observation can be made regarding the Activities of Normal Living/OCF-12 dated March 11, 2020. Although the applicant has checked off many boxes on this form indicating that he can only partially complete many activities of daily living, there is no supporting medical analysis. Nor is there a specific comparison of what the applicant was able to do before the accident with what he was able to do after the accident, which is what the Heath test requires. There are a few handwritten notations, like “less social activities with friends” and a reference to staying home due to a driving phobia, but nothing that I find to indicate that the applicant suffers from a complete inability to carry on a normal life as a result of the accident.

13I prefer the medical evidence of the respondent. Aviva relies mainly on a multidisciplinary report dated October 7, 2020 that was conducted by Dr. Shehla Qadeer, general practitioner, Dr. Gary Challis, psychologist, and Rodney Pritchett, occupational therapist. Mr. Pritchett’s report is most relevant to the NEB claim, as he conducted an in-home assessment of the applicant. He noted that the applicant reported being independent with personal care, household tasks, and outdoor maintenance, although he was moving at a slower pace post-accident. Mr. Pritchett also wrote that the applicant said he was continuing to engage in his pre-accident leisure activities, again at a slower pace than before the accident, and that the applicant said that he was capable of operating a motor vehicle and would borrow one when required. Mr. Pritchett observed the applicant completing many tasks around his home, as well. His final conclusion was that the applicant demonstrated no impairment and that he was able to engage in his pre-accident activities. I see no reason to disagree with this assessment.

14Dr. Qadeer confirmed the applicant’s injuries with regard to a neck sprain, low back sprain, and soft-tissue damage to the shoulders. She also noted, however, that the applicant reported being able to complete his personal care tasks. Dr. Qadeer concluded that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Challis similarly concluded in his report that the applicant was not suffering from a complete inability to carry on a normal life from a psychological perspective (although as noted above, this report was essentially superseded by the later IE of Dr. Mor). Again, I see no compelling reasons to take issue with these suppositions.

15While I accept that the applicant has a psychological impairment as a result of the accident, and that he may have ongoing pain that reduces his ability to perform some activities of daily life, I do not find that these symptoms constitute a complete inability to carry on a normal life. Evidence in the multidisciplinary report noted above—particularly the in-home assessment—demonstrates that the applicant is able to continue with his activities post-accident, albeit at a slightly slower pace than he did before the accident. This does not meet the strict test for NEB entitlement. There is also little evidence to indicate the presence of an objective injury that would be functionally limiting to the point where the applicant could not substantially carry on the activities of a normal life.

16For the above reasons, I find that the applicant is not entitled to a NEB for the period of time in dispute, as he has not demonstrated a complete inability to carry on a normal life as a result of the subject accident. Given that there is no entitlement to a NEB, it follows that no interest is owed.

The Treatment Plan

17I find that the treatment plan in dispute is reasonable and necessary.

18To receive payment for a treatment plan under 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. 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 same are reasonable.

19Here, the applicant seeks payment for the remaining unapproved portion of a treatment plan in the amount of $1,945.00 ($3,701.88 less $1,756.88 approved). This represents the difference between the recommendation of Dr. McDowall, who recommended 14 1.5-hour sessions of psychological therapy, and the recommendation of IE assessor Dr. Mor, who recommended eight one-hour sessions of psychological therapy.

20I prefer the evidence of the applicant. While I accept the respondent’s argument that 1.5-hour psychological therapy sessions can be exceptional and that one-hour sessions are more typical, I find that the need for this added level of treatment is well supported in the thorough assessment of Dr. McDowall. Dr. McDowall delineates an entire course of treatment in her report, covering the specifics of the therapy that she is recommending. She delves into significant detail regarding the recommended cognitive-behavioural therapy and its goals of addressing the applicant’s negative thought patterns and other psychological difficulties experienced as a result of the accident. Dr. Mor, on the other hand, does not comment on Dr. McDowall’s recommendations, attempt to refute them, or even fully explain why he is recommending fewer hours of therapy than his colleague. He just recommends eight one-hour sessions of mental health and addictions therapy, with no accompanying specifics of what this treatment would entail, or any rationale as to why this course of action should be considered instead of the Dr. McDowall course of treatment.

21For the above reasons, I find that the applicant is entitled to the remaining cost of the treatment plan in dispute once incurred, plus interest under s. 51 of the Schedule, as applicable.

Award

22I find that the applicant is not entitled to an award.

23Although the applicant has listed an award pursuant to s. 10 of Regulation 664 among the issues in dispute, he has made no submissions detailing his reasons for claiming such an award. In the course of making arguments regarding the NEB and the treatment plan, the applicant occasionally diverges into allegations that the respondent has breached its duty of good faith. However, I find these comments on their own do not make a case that the respondent has unreasonably withheld or delayed payments to the applicant.

24As a result, the applicant is not entitled to an award.

CONCLUSION AND ORDER

25I find that:

i. The applicant is not suffering from an inability to carry on a normal life as a result of the accident, and is therefore not entitled to an NEB. ii. Given that no NEB is owed, the applicant is not entitled to interest with regard to the NEB claim. iii. The applicant is entitled to $1,945.00 ($3,701.88 less $1,756.88 approved) for the treatment plan in dispute, as well as interest pursuant to s. 51 of the Schedule, as applicable. iv. The applicant is not entitled to an award.