Citation: Kelly v. Intact Insurance Company, 2023 ONLAT 20-014638/AABS

Licence Appeal Tribunal File Number: 20-014638/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:

Fiona Kelly

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Fiona Kelly, Applicant

Brent McQuestion, Counsel

For the Respondent:

Maryam Younes, Counsel

Heard by way of written submissions

OVERVIEW

1Fiona Kelly, the applicant, was involved in an automobile accident on September 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). She was the seat-belted front passenger of a vehicle being driven by her husband that was rear-ended by another vehicle that failed to stop for a red light. The applicant reportedly hit her head on the headrest but did not lose consciousness. Paramedics attended the scene, and the applicant was transported to hospital.

2The applicant submits that as a result of the accident she suffers from ongoing head and lower back pain with numbness into both legs that affects her ability to stand, sit, bend, lift, or do any repetitive movement. Her pain has caused depressed mood and anxiety because of her limitations.

3The applicant also reported a pre-existing condition related to brain surgery to remove a tumour in 2011. She suffered a stroke during the surgery and was left with left visual field deficits, headaches, and seizures. According to the applicant, however, the headaches got much worse after the accident. She had not a seizure since 2011 until one occurred during her first physiotherapy appointment after the accident. Fortunately, there is no indication of any other seizure activity since that time.

4The applicant was denied benefits by the respondent, Intact Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 27, 2019 to August 29, 2020?

ii. Is the applicant entitled to $3,214.49 for rehabilitation therapy, proposed by Ross Rehabilitation in a treatment plan/OCF-18 (“plan”) dated July 30, 2021 and denied November 2, 2021?

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

RESULT

6The applicant is not entitled to a non-earner benefit.

7The applicant is entitled to rehabilitation therapy in the amount of $3,214.49 proposed by Ross Rehabilitation in a plan dated July 30, 2021. Interest applies pursuant to s. 51 of the Schedule.

ANALYSIS

Is the applicant entitled to a non-earner benefit?

8I find that the applicant is not entitled to a non-earner benefit. To receive a non-earner benefit, a person must prove that they suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. A person suffers a complete inability to carry on a normal life if they sustain an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident. Heath v. Economical Mutual Insurance Company (2009 ONCA 391) outlines the guiding principles for assessing entitlement to a non-earner benefit, which focus on a comparison of the applicant’s pre-and post-accident activities.

9Thought the applicant did not submit which activities she put most importance on, she submitted that before the accident she would:

i. Care for and walk her three dogs, as well as care for her eight horses and one bird.

ii. Be independent with self-care, mobility, and activities of daily living.

iii. Assist with housekeeping/home maintenance.

iv. Go grocery shopping with her husband and tend to her garden.

v. Bicycle and socialize with friends/family.

10The applicant submitted that after the accident her life changed in the following ways:

i. She could not care for her horses or take her dogs to the dog park.

ii. She significantly reduced the consistency of her self-care and grooming.

iii. She could no longer prepare meals.

iv. She could not go grocery shopping with her husband.

v. She could not maintain her home or carry laundry up the stairs.

vi. She could no longer engage socially with friends or go biking.

11The respondent submitted that according to the occupational therapy report by Ms. Harish Sharma, the physician assessment report by Dr. Charanjit Sandhu, and the neurology assessment report by Dr. Brandon Kucher, all dated January 30, 2020, the applicant reported being able to do the following activities before and after the accident.

12Before the accident the applicant:

i. Was independent with all personal care.

ii. Was independent with housekeeping.

iii. Was able to care for her horses.

iv. Did not have a tractor.

v. Did not drive a car.

13After the accident the applicant:

i. Continued to be independent with all personal care.

ii. Was able to perform light housekeeping/home maintenance/cooking activities with pacing.

iii. Provided care for her eight horses, thirty-eight chickens, two cats, three dogs, and one bird.

iv. Could drive the tractor if needed.

v. Was independent with all activities of daily living.

vi. Did not drive a car.

14There are clearly some discrepancies between the applicant’s submission and what she reported to her medical assessors in 2020. To resolve some of these inconsistencies, I have also considered the psychological assessment report from Dr. Ian Smith dated October 19, 2021, and comments from Afsha Husain, the applicant’s occupational therapist, dated July 30, 2021. While I recognize that their comments are outside of the time period in dispute, they are consistent with the applicant’s earlier self-report.

15Dr. Smith commented that the applicant reported ongoing enjoyment with several aspects of her life at the time of his assessment. She spent time with her animals, gardened, spent time with her partner, and cooked. She could manage farm chores during the day and had frequent contact with her extended family and neighbour. The applicant clarified that the pandemic accentuated her losing touch with friends.

16I found the applicant’s detailed self-report of the activities she was able to do in a typical day to be particularly persuasive. It does not support that she suffers a complete inability to carry on a normal life. For example, the applicant reported to Dr. Smith that she would wake up early, read the news on her phone, speak with her neighbour, and begin caring for her horses. She collected eggs from her chickens and walked her dogs around her 17-acre property. The applicant noted that she performed chores around her property throughout the day, fed the animals, had a nap in the afternoon, and cooked a home-cooked meal every evening. She denied neglecting any self-care.

17At the same time, the applicant reported avoiding some optional trips, like going to the grocery store with her partner. According to Ms. Husain, the applicant was making lists on her phone to improve efficiency during grocery shopping, she relied on her partner to assist with purchasing heavier groceries and larger bags of animal food, she was able to care for her animals with pacing, and she was able to prepare her garden to plant vegetables with the assistance of her partner. The applicant expressed to Ms. Husain that she was interested in participating in more community activities once pandemic restrictions were lifted.

18While some of the applicant’s daily activities may have been reduced during the relevant time as a result of her accident-related impairments, I find that the evidence does not support or equate to a complete inability to carry on a normal life during that time. The applicant was able to continue cooking, perform daily chores around her property, garden, care for her many animals on a daily basis, perform self-care, and socialize with her extended family and neighbour as pandemic restrictions have allowed.

Is the applicant entitled to $3,214.49 for rehabilitation therapy?

19I find that the applicant is entitled to $3,214.49 for rehabilitation therapy. Section 15(1) of the Schedule sets out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. The applicant has satisfied her burden to prove on a balance of probabilities that the treatment she claims is reasonable and necessary for her accident-related impairments.

20The applicant submitted that Ms. Husain, who proposed 12 additional rehabilitation therapy sessions, provided a thorough rationale in support of her recommendations by stating that the treatment plan goals included functional activation and community reintegration, as well as a return to activities of daily living.

21The applicant submitted that Dr. Smith’s psychological IE dated July 30, 2021, noted observations that the applicant appeared to become quickly overwhelmed, and that she reportedly found rehabilitation therapy to be helpful in the past. The applicant also reported to Dr. Smith that she experienced a deterioration in functioning when proposed therapy was interrupted because of the respondent’s denials.

22The respondent submitted that Dr. Smith concluded in his October 2021 report that the applicant had already participated in adequate rehabilitation therapy. He opined that she should possess sufficient familiarity and capacity to engage in independent community outings. As a result, the proposed therapy was not reasonable or necessary.

23Ms. Husain provided detailed justification for the proposed rehabilitation as part of the plan in dispute, which supports the reasonableness of the plan. Ms. Husain noted that the applicant continued to feel anxious and overwhelmed leaving her property and travelling in a vehicle. She also continued to avoid certain social and community activities in busy or visual/auditory stimulating environments. Grocery shopping was also still a challenge. The proposed therapy was to continue to improve the applicant’s community reintegration, pacing, scheduling/activity planning, and provide exposure to the community to further reduce feelings of anxiety and panic and minimize withdrawal. Ms. Husain noted some gains with previous rehabilitation therapy and the ongoing need to review and facilitate the applicant’s functional goals and monitor her progress.

24Although Dr. Smith recommended that the proposed therapy was not reasonable or necessary, he corroborated several of the applicant’s ongoing struggles, as outlined by Ms. Husain. For example, Dr. Smith noted that the applicant appeared to become quickly overwhelmed during his assessment. She also exhibited some anxiety and vigilance, orienting herself to the sound of a vehicle outside of the clinic. He did not note any symptom exaggeration. The applicant reported that she found the previous rehabilitation therapy to be helpful for her sense of community engagement. Dr. Smith went on to report that the applicant remained vigilant for danger in most environments, particularly crowded public settings. She was also highly motivated to return to rehabilitation therapy treatment.

25The applicant has consistently reported that rehabilitation therapy was helping to improve her ability to functionally re-integrate into the community. The evidence is also clear that she continues to have accident-related impairments for which the proposed treatment would be of benefit. Therefore, I find the proposed treatment to be both reasonable and necessary, subject to remaining funding availability. The applicant has found ways to increase her functional tolerances and social interactions while at home on her own property, but both Ms. Husain and Dr. Smith agree that she continues to have deficits outside of that closed environment.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the above treatment plan for rehabilitation therapy is overdue, interest applies.

ORDER

27The applicant is not entitled to a non-earner benefit.

28The applicant is entitled to rehabilitation therapy in the amount of $3,214.49 proposed by Ross Rehabilitation in a plan dated July 30, 2021. Interest applies pursuant to s. 51 of the Schedule.