Citation: Ngo v. The Co-operators General Insurance Company, 2023 ONLAT 21-003127/AABS

Licence Appeal Tribunal File Number: 21-003127/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:

Hahn Ngo

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Christina Martin, Counsel

For the Respondent: Daniel Himelfarb, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hahn Ngo (“the Applicant”) was involved in an automobile accident on October 21, 2018 and sought benefits from Co-operators Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

SUBSTANTIVE ISSUE

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to non-earner benefits (“NEBs”) of $185.00 per week from June 3, 2019 to October 21, 2020?

2. Is the Applicant entitled to a medical benefit in the amount of $2,529.93 for physiotherapy treatment, proposed by Pursuit Health Management in a treatment plan/OCF-18 (“plan”) dated March 5, 2019?

3. Is the Applicant entitled to a cost of examinations in the amount of $549.13 for a Physiotherapy Assessment, proposed by Pursuit Health Management in a plan dated June 14, 2021?

4. Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

5. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant has not met her onus to demonstrate that she is entitled to the benefits claimed. No interest and no award are payable.

BACKGROUND

4The Applicant was the front-seat passenger of a vehicle that was struck by an oncoming left-turning vehicle in an urban intersection. She sought no medical attention in the immediate aftermath of the collision but visited her family physician, Dr. A. Imran, two days later on October 23, 2018, and complained of head, back, and shoulder pain, headaches, and nausea. The Applicant was diagnosed with whiplash and advised to start physiotherapy. However, the Applicant also developed an adjustment disorder as a result of the accident. She claims that her accident-related injuries preclude her from engaging in her pre-accident activities and warrant additional physiotherapy.

ANALYSIS

Non-Earner Benefits(“NEBs”)

5I find that the Applicant is not entitled to NEBs as claimed.

6Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

7The Applicant submits that there is robust medical and other evidence which supports her claim that she suffers a complete inability to carry on a normal life as a result of the accident. The Respondent disagrees and submits that the Applicant does not meet the test for eligibility and further submits that the Applicant’s reduced capacity does not amount to her being continuously prevented from engaging in substantially all of her pre-accident activities. It relies on the insurer’s examination (“IE”) reports by Dr. N. Abram, dated May 27, 2019 and Dr. P. Corbin, dated October 3, 2019, and the surveillance report dated August 9, 2021 to support it’s position.

8I agree with the Respondent and find that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. I find that the surveillance evidence sufficiently challenges the Applicant’s reports to assessors. The Applicant has also failed to provide an adequate explanation for the functionality depicted in the video surveillance and report, which greatly contrasts her reports to assessors. I prefer the IE reports and opinions therein over the physiotherapy assessment reports.

9The surveillance report dated August 9, 2021 contradicts the Applicant’s reports and demonstrates that she is functional. The surveillance occurred on July 23, and 24, 2021 and appears to show that the Applicant was working in a nail salon from approximately 9:15 a.m. to 7:00 p.m. and 9:30 a.m. to 6:00 p.m. The Applicant is observed waiting outside of her home, during which she is seen bending and crouching, travelling in a vehicle to the nail salon, turning on the “open” sign, and performing nailcare to customers at the nail salon. This is in direct contrast to the Applicant’s prior self-reports to IE assessors Dr. P. Corbin, psychologist, and Dr. H. Abram, physician. In fact, Dr. Abram commented on the validity of the Applicant’s self-reported limitations and noted that she exhibited greater functionality in informal testing, relative to formal testing.

10I find the surveillance report compelling because the Applicant has provided no explanation for the functionality depicted in the video and report. The Applicant does not dispute the surveillance evidence and, instead, submits in reply that the evidence should be given no weight because it does not speak to whether she can engage meaningfully in her regular activities of daily living on a sustained basis. The Applicant’s failure to explain the discrepancy in her functionality reported to assessors and the functionality depicted in the surveillance video causes me to conclude that she has no explanation as to why her self-reported symptoms were exaggerated to assessors.

11The balance of the medical evidence does not demonstrate that the Applicant suffers a complete inability to carry on a normal life as a result of the accident. Dr. Imran’s clinical notes and records (“CNRs”) indicate that the Applicant made ongoing pain complaints following the accident and used prescription medication to cope with her pain. The Applicant never reported to Dr. Imran an inability to complete her pre-accident tasks and there is no evidence in the CNRs to indicate that the Applicant is disabled from engaging in her pre-accident activities. The March 6, 2019 physiotherapy report by J. Zwambag states that the Applicant reported that she has not done anything since the accident and is therefore unable to determine any aggravating factors for her symptoms. The Applicant’s vague report of an inability to do anything post-accident is unbelievable and holds no weight as a result.

12A reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The Applicant’s self-reported limitations often note a reduced ability to complete pre-accident tasks. Yet, the test for entitlement to NEBs is stricter and requires the Applicant to demonstrate a complete inability to continuously engage in substantially all of her pre-accident activities. For example, the physiotherapy progress report by M. Badder, physiotherapist, dated January 18, 2019, notes that the Applicant reported limited ability to perform her pre-injury daily and functional activities, but does not demonstrate that the Applicant suffers a complete inability. In the social work assessment report by D. Hrovat, dated August 21, 2019, the Applicant reported reduced functionality due to pain, but was able to complete simple light household chores such as folding laundry and sweeping the floor. The Applicant noted that she is independent with bathing and dressing but is restricted in styling and colouring her hair. Most remarkable, in light of the surveillance evidence, is that the Applicant reported to this assessor that she was unable to start work at a hail salon due to accident-related pain.

13I find the physiotherapy assessment report and Dr. Teasell’s physiatry report dated August 18, 2021 and October 14, 2021, respectively, to be unpersuasive as the reports are contradicted by the functionality depicted in the surveillance evidence and are not contemporaneous with the Applicant’s claim for NEBs. The physiotherapy assessment report dated August 18, 2021 does not identify any impairments that would preclude the Applicant from engaging in her pre-accident activities. The report notes that the Applicant described notable symptoms of neck and back pain that radiates into her legs, headaches, and sleep and balance issues, but does not indicate that these issues prevent the Applicant from engaging in her pre-accident activities. Dr. Teasell’s report noted that the Applicant’s neck and back ROM were very limited on examination and that she reported an inability to work due to pain.

14Pursuant to section 12(3)(c) of the Schedule, the Respondent is not liable to pay NEBs for any period beyond 104 weeks after the accident. The physiotherapy and physiatry reports were completed about a year after the expiration of the 104 week limit. Further, the reports are unpersuasive as they fail to provide a clear analysis of the Applicant’s ability to engage in her activities of daily living, as they relate to the period pre-dating the accident.

15I give weight to the IE reports whereby the assessors concluded that the Applicant did not suffer a complete inability to carry on a normal life. Dr. Corbin assessed the Applicant from a psychological perspective and in the October 3, 2019 report concluded that the Applicant suffered from an adjustment disorder and reported memory issues, but that the impairments do not rise to the level to constitute a complete inability to carry on a normal life. Likewise, Dr. Abram, in the May 27, 2019 report, noted that the Applicant does her own personal care and light household chores with pacing. While Dr. Abram’s examination of the Applicant noted restrictions in her ROM throughout her body, it was noted that casual observation demonstrated full flexion of the spine. I further appreciate that the IE reports included a fulsome review of the Applicant’s medical records and are contemporaneous with the Applicant’s claim for NEBs.

16Considering the functionality noted in the IE reports and the surveillance evidence, I find that the Applicant does not suffer a complete inability to carry on a normal life and is not entitled to NEBs as claimed.

The Applicant is not entitled to the treatment plans in dispute

17The Applicant never addressed the plans directly. However, her submissions state that physiotherapy was recommended by various healthcare providers to address her accident-related issues.

18The Respondent submits that the Applicant has not met her burden to demonstrate that the treatment and assessment plans are reasonable and necessary. It further submits that Dr. Abram opined that the March 5, 2019 physiotherapy plan was not reasonable and necessary and that the Applicant would no longer benefit from passive physiotherapy and that the functionality exhibited in the surveillance and assessments reports indicates that further physiotherapy examination is not reasonable and necessary. The Respondent notes that the Applicant has been assessed twice by an independent medical evaluator to determine functional status and there has been no significant change in her situation that would require another assessment.

19I agree with the Respondent and prefer the opinion of Dr. Abram over the recommendations from the Applicant’s treating physiotherapist. Dr. Abram concluded that the Applicant continues to report considerable subjective complaints that are not in keeping with the mechanism of the injury reported in the accident. Dr. Abram further noted that the examination of the Applicant resulted in no significant evidence of any significant orthopaedic or neurological findings and encouraged her to fully engage in all her pre-accident activities. Dr. Abram found that further therapy would not be helpful in the Applicant’s situation and may promote dependence.

20Dr. Abram’s conclusion is consistent with the information in Dr. Imran’s CNRs. On April 6, 2019, the Applicant reported to Dr. Imran that she stopped engaging in physiotherapy because she found it unhelpful. Based on Dr. Abram’s report and Dr. Imran’s records, I conclude that further physiotherapy – which the Applicant reported to be unhelpful – is not reasonable and necessary. Similarly, it follows that a physiotherapy assessment in addition to those already provided, is not reasonable and necessary.

No interest is payable

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is not entitled to any of the benefits claimed, it follows that she is not entitled to interest on the overdue payment of benefits.

The Applicant is not entitled to an award

22The applicant sought an award under s. 10 of Reg. 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. I find no award payable.

23The Applicant submits that she is entitled to an award because it denied her claims despite the medical evidence. She directs me to no specific example or reason why she is entitled to an award. The Respondent submits that the denial of medical and rehabilitation and non-earner benefits was reasonable and supported by IEs and a disagreement over entitlement to benefits does not equate to the respondent acting from an “unreasonable and unsupported position”.

24I agree with the Respondent and find no evidence that it unreasonably withheld or delayed the payment of benefits. The Respondent’s adjusting of the Applicant’s claims appears to be based on the medical evidence and opinions of the IE assessors and the Applicant has provided no submissions or evidence that indicates otherwise.

CONCLUSION AND ORDER

25I find that the Applicant has not met her onus to demonstrate that she meets the disability test for entitlement to NEBs for the period claimed.

26I find that the plans in dispute are not reasonable and necessary as a result of the accident.

27The Applicant is not entitled to interest or an award.

28The Application is dismissed.