Citation: Hart v. Intact Insurance, 2023 ONLAT 21-004495/AABS
Licence Appeal Tribunal File Number: 21-004495/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:
Robert Hart Applicant
and
Intact Insurance Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Stephen E. Sloan, Counsel
For the Respondent: Nicholas M. Wine, Counsel
HEARD: BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Robert Hart, the applicant, was involved in an automobile accident on April 18, 2019, 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, Intact Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 18, 2019 to date and ongoing?
ii. Is the applicant entitled to $6,200.00 for a psychological, neuropsychological and neuro-psychometric assessment, proposed by Kaplan & Levitt Psychologists in a treatment plan dated June 28, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. 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
3I find that:
i. The applicant is not entitled to a non-earner benefit for the period in dispute;
ii. The applicant is not entitled to the treatment plan in dispute;
iii. As no benefits are owing, no interest is payable; and
iv. The respondent is not liable to pay an award under Regulation 664.
PROCEDURAL ISSUES
4By way of email dated September 19, 2022, the respondent objected to the late filing of the applicant’s reply submissions. The written hearing was scheduled for September 23, 2022. Pursuant to a Motion Order dated May 11, 2022, the applicant was to file his reply submissions five days before the hearing, which would have been September 16, 2022. However, the applicant did not file his reply submissions until September 19, 2022, which was one business day after the deadline.
5While the respondent objects to the late filing, it has not provided any submissions as to how the reply being submitted one day late, would be prejudicial to its case. The respondent had already provided its submissions for the written hearing and as such, the one day delay did not affect the respondent’s allotted time to prepare and file submissions. While I agree with the respondent that the applicant filed his reply submissions one day past the deadline, Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure requires me to interpret the Tribunal’s Rules liberally and gives me the discretion to vary or apply the Rules on my own initiative or on the request of a party.
6Rule 3.1 requires that I facilitate an open, fair, and accessible process to ensure effective participation by all parties. It also requires that I ensure an efficient, proportional, and timely resolution of the proceedings on the merits. I find that it would be procedurally unfair to the applicant to strike the reply submissions due to a one day breach. Allowing the submissions will not prejudice the respondent. As such, I will consider the applicant’s reply submissions as part of this written hearing.
ANALYSIS
The applicant has not established entitlement to Non-Earner Benefits (“NEBs”)
7The applicant submits that due to his accident-related impairments, combined with his pre-existing medical conditions of multiple sclerosis (“MS”), chronic pain, diffuse idiopathic skeletal hyperostosis, Ovine Johne’s disease and spinal cord herniation, he suffers from a complete inability to carry on a normal life. To establish his claim, the applicant relies on three OCF-3s, dated June 13, 2019, July 18, 2019 and October 25, 2019 and an OCF-18 dated November 4, 2019. The applicant also points to his statements to the respondent’s s. 44 assessors, particularly Ms. Leslie Hisey, occupational therapist, where he describes how he is unable to engage in his pre-accident activities of daily living.
8The respondent disputes the applicant’s entitlement to NEBs and argues that given the applicant’s significant pre-accident medical history and chronic pain, which had not resolved prior to the accident, the applicant had already been severely restricted in his activities of daily living, mobility and driving. It contends that the applicant had been on extended disability and received CPP benefits prior to the accident, due to his health-related restrictions. The respondent argues that the applicant has not established that he suffers from a complete inability to carry on a normal life as a result of the accident. It relies upon insurer’s examination (“IE”) assessment reports prepared by Dr. Bansal, physiatrist, Dr. Duhamel, neuropsychologist, Ms. Hisey, occupational therapist, and Dr. Nesovic, psychologist, who all found that the applicant did not meet the test for NEBs.
9I find that the applicant has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life.
10To establish entitlement to NEBs, an applicant must lead sufficient evidence of an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
11The applicant has not provided any specific submissions or tendered any evidence of his pre-accident activities of daily living or demonstrated how his ability to engage in these activities has changed as a result of the accident. In his submissions, the applicant does not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare the applicant’s pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.
12The only specific submission the applicant makes regarding his pre-accident activities, is to refer to the respondent’s IE report of Ms. Hisey dated September 8, 2021. The applicant states that this occupational therapy IE report describes his typical pre-accident activities and confirms that he is unable to continue with these activities post-accident. However, I do not find that the description in Ms. Hisey’s IE report establishes a complete inability to carry on a normal life. Ms. Hisey noted that the applicant reported that he was still independent with personal care, with adaptive measures, that he still drove (but shorter distances), and in terms of leisure activities that he no longer did his pre-accident activity of woodworking, but that he did still continue with baseball glove re-lacing. Ms. Hisey did note that the applicant completed homemaking tasks pre-accident with pacing, but now reported that he was unable to. However, given that the applicant reported that he was able to complete a majority of his pre-accident activities, Ms. Hisey found that the applicant did not suffer a complete inability to carry on a normal life.
13I also note that with respect to housekeeping tasks specifically, the applicant had reported to a different IE assessor, Dr. Bansal, that pre-accident he had performed approximately 10-15% of housework tasks due to his previous health restrictions. The applicant further reported that post-accident he was performing approximately 10% of the housework. As such, I agree with the respondent’s submissions that the applicant has provided inconsistent self-reports to various IE assessors with respect to his post-accident limitations. I further agree with the respondent’s submissions and cited caselaw that a reduction in the ability to complete pre-accident activities does not meet the stringent NEB test of a complete inability.
14The applicant further does not direct me to any medical opinion or medical evidence that he suffers a complete inability to carry on a normal life. Although he submits three OCF-3s which note such restrictions, I agree with the respondent’s submissions and cited caselaw, that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. Rather additional objective medical evidence is required. The applicant argues that since the respondent had previously denied an OCF-18 for an occupational therapy assessment, he was unable to collect such information. However, corroborating medical evidence can also be submitted way of specific references to a medical opinion or CNRs from treating physicians or clinics which describe accident-related restrictions to his daily activities. The applicant has not directed me to any such medical evidence.
15All of the respondent’s IE assessors found that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident. Dr. Bansal found that from a musculoskeletal perspective, the applicant did not sustain any functional limitations from the accident, that he was independent with his activities of daily living and self-care tasks, still driving and still performing a portion of housework tasks. The applicant disputes Dr. Bansal’s findings, arguing that given his MS diagnosis, he has primarily been under the care of a neurologist and as such, Dr. Bansal, as a family physician, lacked the necessary qualifications to opine on his limitations. However, I agree with the respondent’s submissions that that as a family physician, Dr. Bansal provided an opinion as to the applicant’s physical accident-related injuries. Moreover, although the applicant states that he has been primarily under the care of a neurologist, he has not provided any opinion or evidence from his treating neurologist in support of his NEB claim. As such, the applicant has not provided any objective medical evidence to refute the IE assessors’ findings.
16On this basis, I find that the applicant has not established entitlement to NEBs for the period in dispute.
The applicant has not established entitlement to the treatment plan in dispute
17To receive payment for a treatment and assessment plan (“OCF-18”) 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.
18The applicant submitted an OCF-18 dated June 28, 2019 in the amount of $6,200.00 for a psychological, neuropsychological and neuro-psychometric assessment. The respondent denied this OCF-18, relying on the neuropsychological IE assessment of Dr. Duhamel, who determined that there was insufficient evidence to conclude that the applicant had sustained a concussion or otherwise developed a mental disorder as a result of the accident.
19I find that the applicant has not adduced sufficient evidence to establish that the proposed assessments are reasonable and necessary.
20The OCF-18 proposed three assessments. However, the respondent submits that since it has already approved a different treatment plan for a psychological assessment, the portion of the OCF-18 in dispute relating to a psychological assessment is duplicative. The applicant has not provided any submissions or arguments as to why an additional psychological assessment would be required. Further, the applicant has not led any evidence or provided any submissions as to why both a neuropsychological assessment and a neuro-psychometric examination are required. No explanation is provided as to what each of these assessments will be examining. I agree with the respondent’s submissions and cited caselaw, that without any specific submissions or explanation from the applicant as to how these assessments differ, the applicant has not met his burden to prove that both such assessments are reasonable and necessary.
21Moreover, the applicant has not provided specific submissions or led sufficient evidence of accident-related cognitive or functional impairments to warrant the additional neuropsychological testing. The applicant relies in large part on the OCF-18 itself, however, it is well-settled that an OCF-18 alone is not sufficient to prove that proposed treatment is reasonable and necessary. The applicant’s only submissions on the issue are to dispute Dr. Duhamel’s neuropsychological IE assessment, as Dr. Duhamel had not competed the full assessment due to the applicant’s self-reported discomfort. However, even disregarding Dr. Duhamel’s assessment, the applicant has not led sufficient medical evidence of accident related cognitive or neurological impairments, neuropsychological impairments or post-concussive symptoms.
22The only reference in the applicant’s submissions to post-concussive symptoms is one clinic note from Dr. Suresh Menon, his treating neurologist. In the August 27, 2019 entry, Dr. Menon noted that the applicant appeared to be stable with respect to his MS but that in “regards to the patient’s ongoing symptoms, there seems to be a musculoskeletal/post concussive” [component] [sic]. However, no additional evidence or submissions were provided by the applicant. I do not find one notation that symptoms “seem” to be post-concussive, to be persuasive evidence of ongoing neurological or post-concussive symptoms. The applicant has not directed me to any evidence, such as additional CNR entries describing ongoing reports of such symptoms to his doctors or treatment providers, or any formal diagnosis.
23The burden of proof rests with the applicant. Without specific submissions or sufficient medical evidence establishing impairments warranting the proposed assessments, I am unable to find that the applicant has established that the OCF-18 in dispute is reasonable and necessary.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
Award
25The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
26The applicant submits that he is entitled to an award, due to the respondent’s refusal to provide NEBs and the delay in removing him from the Minor Injury Guideline (“MIG”). He contends that despite his serious impairments, he was not removed from the MIG until 26 months after the accident. However, the applicant has not provided any specific submissions or any evidence, such as references to adjuster’s log notes, to indicate that the respondent had failed to properly consider his claim. No details have been provided as to what medical information was provided to the respondent to support the earlier removal from the MIG. Further, as I have found the applicant was not entitled to NEBs, there is no basis to conclude that the respondent unreasonably withheld or delayed the payment of this benefit.
ORDER
27The applicant has not demonstrated that he is entitled to NEBs or that the disputed OCF-18 is reasonable and necessary. Accordingly, no interest is payable.
28The applicant is not entitled to an award.
29The application is dismissed.
Released: June 2, 2023
Ulana Pahuta Adjudicator