Shand v. Novex Insurance Company, 2023 CanLII 40096

Licence Appeal Tribunal

Citation: Shand v. Novex Insurance Company, 2023 ONLAT 21-007262/AABS

Licence Appeal Tribunal File Number: 21-007262/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:

Christina D Shand

Applicant

and

Novex Insurance Company

Respondent

DECISION

ADJUDICATORS:

Rebecca Hines Bernard Trottier

APPEARANCES:

For the Applicant:

Christina Shand, Applicant Madiha Qurashi, Counsel

For the Respondent:

Ian Heritage, Claims Representative

Brittany Rizzo, Counsel

Court Reporters:

Lottie Grub Emily Thompson (April 24)

HEARD: by Videoconference

April 24 and 25, 2023

OVERVIEW

1Christina D. Shand, the applicant, was involved in an automobile accident on May 11, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Novex Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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”)?

ii. Is the applicant entitled to receive a non-earner benefit (“NEB”) of $185.00 per week from June 1, 2020 to date and ongoing?

iii. Is the applicant entitled to receive $1,796.00 for physiotherapy services, proposed by Lindsay Rehabilitation Centre, in a treatment plan submitted September 1, 2020, and denied September 16, 2020?

iv. Is the applicant entitled to receive $2,460.00 for a psychological assessment, proposed by HM Medical Network Ltd, in a treatment plan submitted August 13, 2020, and denied August 26, 2020?

v. Is the applicant entitled to receive $2,128.51 for an attendant care assessment, recommended by HM Medical Network Ltd, in a treatment plan submitted September 14, 2020 and denied on September 24, 2020?

vi. Is the applicant entitled to receive $4,538.77 for psychological services, recommended by HM Medical Network Ltd, in a treatment plan submitted June 11, 2021 and denied June 23, 2021?

vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant failed to prove that her injuries are not minor and could not be treated within the Minor Injury Guideline limits.

4The applicant has not proven that she satisfies the criteria for entitlement to a non-earner benefit.

5Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the Minor Injury Guideline are not reasonable and necessary.

6An award under s. 10 of Reg. 664 is not payable.

7Since no treatment plans are payable, no interest is payable.

PROCEDURAL ISSUES

8The respondent raised as a procedural issue that the applicant’s daughter, Laura Barber, should be barred from appearing as a witness. The respondent submits that the applicant provided a witness list, consisting of only the applicant and Ms. Lital Grinberg, psychotherapist, on April 19, 2023 (five days before the hearing). Ms. Barber was not on this witness list. The respondent submits that it would be procedurally unfair to have Ms. Barber appear as a witness since the respondent did not have sufficient time to prepare for a cross-examination of this witness.

9The respondent’s motion to exclude Ms. Barber as a witness is denied.

10Originally this hearing was scheduled for October 17-19, 2022, but it was adjourned three days before the hearing, at the respondent’s request, due to an unforeseen health issue. Ms. Barber was proposed as a witness at that time, in a witness list provided to the respondent on September 28, 2022. The respondent was also aware that the applicant may call a family member as highlighted in the Tribunal’s Case Conference Report and Order of January 10, 2022.

11We find that the respondent was previously notified of the applicant’s intention to call Ms. Barber as a witness and would have prepared for cross-examination of this witness ahead of the original hearing date. Rule 3.1 of the Licence Appeal Tribunal’s Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”) allows for interpretation of the Rules to facilitate a fair, open and accessible process, so that there is effective participation by all parties. Given the previous notice to the respondent of the applicant’s intent to call Ms. Barber as a witness, we do not find that it would be procedurally unfair to allow Ms. Barber’s testimony.

ANALYSIS

The applicant’s injuries do not place her outside of the Minor Injury Guideline

12The applicant did not provide objective medical evidence that her pre-existing medical and psychological conditions were exacerbated by the accident such that she required treatment outside of the MIG to recover.

13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “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 an injury.”

14An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 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.

15The applicant submits that she should be removed from the MIG because she suffers from pre-existing musculoskeletal conditions including spina bifida, sciatica and chronic back pain. She also had pre-existing cardiopulmonary conditions including chronic obstructive pulmonary disease (COPD), bronchitis, asthma and hypertension. In addition, she had significant psychological conditions including bipolar disorder, social anxiety and depression. She relies on the report of Lital Grinberg, psychotherapist, who diagnosed her with accident-related psychological impairments.

16The respondent argues that the applicant’s physical injuries fit the Schedule’s definition of minor injuries: soft tissue strains, bruises, swelling and no bone fractures. Further, the applicant has failed in her onus to provide compelling medical evidence from a treating practitioner that her pre-existing physical and psychological impairments would prevent her from achieving maximum medical recovery within the MIG. The respondent relies on the insurer examination (IE) reports of Dr. David Direnfeld, psychologist, and Dr. Ahmad Belfon, general practitioner (GP) who determined the applicant’s psychological and physical impairments are minor and can be treated in the MIG. We prefer the IE reports of the respondent’s assessors for the following reasons.

16The applicant testified that the level of pain in her back, legs and other body regions increased significantly after the accident. She also asserts that her psychological condition became very fragile after the accident, leading to heightened social anxiety and bipolar outbursts. She argues that these conditions prevented her from attaining maximal medical recovery because her treatment was restricted to the MIG.

17While we acknowledge that the applicant had some serious pre-existing medical conditions, what we found lacking in this case was compelling medical evidence to support that these pre-existing conditions were exacerbated by the accident or would prevent her from achieving maximum medical recovery from treatment within the MIG. For example, the clinical notes and records (CNRs) of the applicant’s family physician, Dr. Marc Chayer, from May 11, 2017 to May 16, 2022, referred to the accident one time, three days after the accident. Multiple x-rays were done which were all normal. Other than the initial visit there were no ongoing physical or psychological complaints in Dr. Chayer’s CNRs. In addition, the CNRs of Lindsay Health Rehab Centre, from August 26, 2020 to June 10, 2021, did not support the applicant’s claim because there is nothing in these records that supports that the applicant’s impairment are not minor.

18The applicant relies on the report of Lital Grinberg dated January 25, 2021. In her report, Ms. Grinberg opines that the subject accident was the direct cause of the applicant’s psychological symptoms because she reported changes in her sleep pattern, mood concerns, changes in appetite, concentration difficulties, vehicular anxiety and pain-related limitations in her daily functioning. Ms. Grinberg diagnosed the applicant with somatic symptom disorder with predominant pain (severe); adjustment disorder with mixed anxiety and depressed mood; and specific phobia (vehicular anxiety).

19We do not find Ms. Grinberg’s opinion or diagnoses are supported by the medical record. As highlighted above, there was nothing in the CNRs of the family physician or treating clinic regarding any psychological complaints.

20The respondent also submits that following Ms. Gringberg’s assessment, the applicant was hospitalized for five-days under a Form 1 in November 2021 for reasons that were unrelated to the accident. During that hospitalization, the applicant was examined by two psychiatrists, Dr. Brij Gulati and Dr. Bharat Chawla. None of the consult reports of the hospital reference the accident at all or any related impairment. It argues that this further supports its position that the applicant’s accident-related impairments are minor because if they were not, the accident would have been mentioned. We agree.

21By contrast, the respondent relies on the IE report of Dr. Direnfeld, psychologist, dated December 7, 2022, who opined that there is insufficient objective evidence of an accident-related psychological disorder, and that her psychological problems pre-dated the subject accident. He further opined that her pre-existing psychological conditions would not affect her ability to achieve maximal recovery within the MIG because he was unable to identify any accident-related psychological injuries or exacerbation. We prefer Dr. Direnfeld’s opinion because it is more consistent with the medical record before us.

22The respondent also relies on the IE report by Dr. Belfon, GP, dated May 12, 2021. In his report, Dr. Belfon opined that the applicant’s physical injuries are classified as minor injuries as defined in the Schedule and that she would be able to recover from her physical injuries through treatment within the MIG limits. We accept Dr. Belfon’s opinion because it is also more consistent with the medical record.

23For all of the above reasons, we find on a balance of probabilities that the applicant’s accident-related injuries are within the MIG.

The applicant is not entitled to an NEB for the time period claimed

24Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical (2009 ONCA 391) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

25The applicant testified that her life was very restricted before the accident because of her pre-existing physical and psychological conditions. She further submitted that even a small negative change in her conditions, precipitated by the accident, can have an enormous impact on her ability to lead a normal life.

26The applicant testified that before the accident, she was actively involved in seeing family and friends, being in public, walking her dogs and caring for herself. She testified that after the accident, she had heightened anxiety and needed help with household chores and self-care.

27The applicant’s daughter testified that after the accident, she saw a marked decline in her mother’s physical and mental health. She testified that after the accident, the applicant required help with self-care, cooking and cleaning, and that as a result she moved into her mother’s home to support her. She also testified that after the accident, the applicant rarely left the house and became anxious in social environments and while driving.

28The respondent argues that the applicant’s life did not change because of the accident. About a year before the accident, from May 29 to June 7, 2019, the applicant was hospitalized at the Centre for Addiction and Mental Health. She had been referred by Women’s Own Withdrawal Management Centre with the goal of the admission identified as eliminating her cocaine addiction, stabilizing her medications and developing an aftercare plan.

29In addition, the applicant had been on Ontario Disability Support Program (ODSP) since 2005 following her diagnoses for anxiety and bipolar disorders as well as for her chronic pain. The respondent pointed to the applicant’s ODSP Self Report Form of June 28, 2012 where the applicant indicates she could not perform self-care (e.g., cannot get in and out of the tub, close zippers) and suffered from severe anxiety and depression.

30The respondent also pointed to the applicant’s Ministry of Community and Social Services Health Status Report, completed by Dr. Chayer on May 2, 2012, that indicated that the applicant had severe emotional symptoms that required assistance from another person to modulate, and that she had medium to moderate limitations to participate in physical activity or carry out housekeeping tasks.

30The respondent relied on the Tribunal’s decision K.T. v Aviva Insurance Company of Canada (2019 CanLII 76971) in support of its position that, to be entitled to an NEB, the applicant must provide a detailed comparison of pre- and post-accident activities and must demonstrate how the accident-related injuries prevent her from engaging in substantially all of her pre-accident activities. The respondent also relies on K.T. v Aviva to underline that the applicant’s post-accident psychological impairments must be shown to be as a result of the accident to be entitled to an NEB.

31The burden of proof lies with the applicant to demonstrate that she has a complete inability to carry on a normal life, as defined by her pre-accident activities of daily living. As already noted above, we find that there was a lack of medical evidence noting any ongoing accident-related physical or psychological impairments which would impact the applicant’s ability to carry out her pre-accident activities. Nor did we find that the medical evidence supports that there was a decline in the applicant’s ability to carry out her activities of daily living post-accident. Based on the evidence, we find that the applicant has not met her burden in establishing that she has a complete inability to carry on a normal life as a result of the accident. As a result, she is not entitled to a non-earner benefit.

The applicant is not entitled to the funding for the proposed treatment plans

32To 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.

33The applicant submitted four treatment and assessment plan (OCF-18) forms: one for physiotherapy, on September 1, 2020; one for a psychological assessment on August 13, 2020; one for an attendant care assessment on September 24, 2020; another for psychological services on June 11, 2021.

34On each of the OCF-18s, the applicant indicated that her impairments are not minor and sought treatment outside of the MIG.

35Since we have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. We note that the MIG limits have not been exhausted. At the hearing, the respondent indicated that only $200 of the $3,500 MIG had been utilized. In light of our decision, the applicant may apply for treatment within the MIG limits.

An award is not payable

36Regulation 664, R.R.O. 1990 (Reg. 664) states that if the Tribunal finds that an insurer unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award, together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

37Since we have found that no benefits are payable, we do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.

Interest is not payable

38Since no benefits are payable, no interest is payable.

ORDER

39The applicant has not demonstrated that her injuries cannot be treated within the limits set by the Minor Injury Guideline.

40The applicant has not demonstrated that her accident-related injuries resulted in a complete inability to carry on a normal life as defined by her pre-accident activities. As a result, she is not entitled to a non-earner benefit.

41The proposed treatment plans are not payable since they propose treatment outside of the Minor Injury Guideline. No interest applies on overdue benefits in dispute.

42The applicant is not entitled to an award.