Garcia v. Aviva General Insurance Company, 2023 CanLII 62917

Citation: Garcia v. Aviva General Insurance Company, 2023 ONLAT 21-004341/AABS

Licence Appeal Tribunal File Number: 21-004341/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:

Blanca Hilda Aguirre Garcia

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Maka Metreveli, Paralegal

For the Respondent: Leanne W. Zabudsky, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Blanca Hilda Aguirre Garcia (the “applicant”) was involved in a motor vehicle accident on June 21, 2018 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 a claim for non-earner benefits (“NEB”) and a treatment plan. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to an NEB in the amount of $185.00 per week from July 19, 2018 to June 17, 2020?
2. Is the applicant entitled to $2,939.77 for chiropractic services, recommended by 101 Physio in a treatment plan/OCF-18 dated January 27, 2021?
3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

3I find that the applicant’s NEB eligibility period is from July 19, 2018 to June 17, 2020, not “June 21, 2018 to date and ongoing” as listed in the Case Conference and Order (“CCRO”) dated June 24, 2022 that set this matter down for a written hearing. The original duration of the NEB sought was not in accordance with the Schedule, which at s. 12(3)(a) precludes payment of this benefit for the first four weeks following the onset of an insured person’s complete inability to carry on a normal life, and at s. 12(3)(c) states that an insurer is not required to pay this benefit for more than 104 weeks after the accident. As a result, I have adjusted the NEB eligibility period.

4I have added a claim for an award under s. 10 of Regulation 664 to the list of the items in dispute. While this issue was not included in the CCRO, the applicant added it in written submissions. The respondent opposed the addition, but provided no basis for this argument in its written submissions beyond stating that the issue “ought not to be added to the dispute at this late stage.” As there are no restrictions governing the addition of an award claim in the Schedule, the Insurance Act, or the Common Rules of Practice & Procedure of this Tribunal, and because the respondent has not sufficiently explained how the addition of an award claim would be prejudicial, I am therefore allowing it.

RESULT

5I find that:

i. The applicant is not entitled to NEB of $185.00 per week from July 19, 2018 to June 17, 2020. She has not submitted a Disability Certificate/OCF-3 in accordance with s. 36(2) of the Schedule, nor has she demonstrated that she suffered from a complete inability to carry on a normal life as a result of the accident in accordance with s. 12(1)1 of the Schedule. As there are no benefits owing, no interest is payable.

ii. The applicant is not entitled to $2,939.77 for chiropractic services recommended in a treatment plan dated January 27, 2021, nor interest.

iii. The respondent is not liable to pay an award.

ANALYSIS

Is the applicant entitled to Non-Earner Benefits (“NEB”)?

6I find that the applicant is not entitled to NEB, as she has not submitted a completed OCF-3, nor has she demonstrated that she suffered from a complete inability to carry on a normal life. It follows that as no benefits are owing, no interest is payable.

7Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an 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 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.

8Section 36(2) of the Schedule requires an applicant for a specified benefit such as NEB to “submit a completed disability certificate with his or her application.” And s. 36(3) holds that an applicant “who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.”

9The applicant submits that she has been unable to return to the normal activities of daily living due to psychological and physical impairments since the accident and therefore meets her burden for entitlement to NEB. She relies on the clinical notes and records (“CNRs”) of North York General Hospital from the day of the accident; an Application for Accident Benefits/OCF-1 dated September 21, 2018; the CNRs of her family physician, Dr. Ullanda Neil; CNRs from Pleasant View Family Health Centre and 101 Physio, where she received treatment; and CNRs from Sunnybrook Health Centre. The applicant also argues that Aviva failed to properly respond to her application for accident benefits, so she did not fully understand what was available to her regarding NEB and a caregiver benefit.

10The respondent takes the position that the applicant has never submitted a completed Disability Certificate/OCF-3 as required by the Schedule, which it deems should be deemed fatal to her NEB claim. Aviva further argues that it did respond to the OCF-1, that the allegation advanced by the applicant regarding caregiver benefits is not relevant, and that the applicant has not met the NEB test in the Schedule and demonstrated that she suffered the complete inability to carry on a normal life within 104 weeks of the accident.

11I agree with the respondent for the following reasons.

12First, I find that the applicant has never submitted a complete OCF-3 and as a result is not entitled to the NEB claimed. The applicant did not submit an OCF-3 as part of its documents for this hearing. She submitted reply submissions, but did not comment on the OCF-3 issue raised by the respondent. In all, she only referenced the OCF-3 at one point. And this was part of a vague comment in initial submissions claiming that Aviva, in its reply to the submitted OCF-1, failed to advise the applicant of possible entitlements, particularly with regard to accessing caregiver benefits.

13This is not a reasonable explanation. The submission of a complete OCF-3 is mandated by the Schedule when applying for a specified benefit such as NEB. Without it, there is no entitlement to NEB. Also, the respondent submitted into evidence a copy of a letter sent by Aviva to the applicant and her legal counsel dated October 1, 2018. It is clearly noted in this letter that, based on the recently received OCF-1, the applicant may qualify for NEB, but that an OCF-3 is required to make this determination. To me, the insurer properly informed the applicant about what was required of her to enable possible entitlement to NEB.

14Additionally, I agree that Aviva did not advise the applicant about caregiver benefits in its October 1, 2018 letter. But I fail to see why the insurer should have referenced these benefits, as there was no indication that the applicant qualified for them. While the applicant noted on the OCF-1 that she was caring for her disabled daughter, she made no claim to catastrophic impairment, necessary to qualify for caregiver benefits under s. 13(1) of the Schedule. And she made no claim to having optional insurance coverage for caregiver benefits as described in s. 28(1)2 of the Schedule.

15As a result, I find that the applicant is in contravention of s. 36(2) of the Schedule, which triggers s. 36(3) and its provision that an applicant is not entitled to a specified benefit until a completed OCF-3 is submitted. As no OCF-3 has ever been submitted in this matter, this is fatal to the applicant’s claim to NEB.

16Second, the applicant has not met her burden and demonstrated that she suffered from the complete inability to carry on a normal life as a result of and within 104 weeks of the accident.

17Although the applicant has submitted medical evidence substantiating that she suffered from a wide range of physical and psychological impairments following the accident, she did not adduce significant evidence comparing pre-accident and post-accident activities as mandated by Heath.

18Most of the applicant’s evidence shows only that the applicant struggled both physically and mentally after the accident. CNRs of Dr. Neil indicate that the applicant attended her family physician on more than a dozen occasions from a week after the accident to November 17, 2020. And CNRs from Sunnybrook Health Centre and the Scarborough Centre for Healthy Communities demonstrate that the applicant experienced the intensification of a number of pre-existing psychological issues in the years following the accident.

19But these records do not illustrate how these issues impacted the applicant’s day-to-day activities; nor do they provide a pre- and post-accident comparison of the sort established by Heath; nor do they provide sufficient proof linking these issues to the accident. Even though I accept that these health problems could have been significant enough to cause the applicant some issues with carrying on a normal life, such an inference alone is not sufficient to meet the test required for entitlement to NEB.

20For the above reasons, the applicant is not entitled to NEB, nor interest.

Is the applicant entitled to $2,939.77 for chiropractic services in a treatment plan dated January 27, 2021?

21I find that the applicant is not entitled to this treatment plan, nor interest, as she has not met her burden and demonstrated that it is reasonable and necessary.

22To 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.

23In dispute is a treatment plan completed by Dr. Bill Niklos, chiropractor, that recommends 14 sessions of physical therapy, seven sessions of acupuncture, and seven sessions of therapy for multiple body sites. It also includes line items for health education, a total body assessment, TENS unit accessories, BioFreeze, and applicant transportation. Injuries and sequelae listed include chronic pain, radiculopathy, various sprains and strains, headache, and injury of muscle and tendon at neck level and at the rotator cuff of the shoulder. Pain reduction, increased and range of motion, a return to the activities of daily living, and the promotion of functional independence are the goals of this plan.

24The applicant submits that this plan has been demonstrated to be reasonable and necessary on the basis that she suffered physical and psychological injuries as a result of the accident and has been diagnosed with chronic pain. She relies on the same medical evidence noted above. The respondent counters that the applicant has not met her onus and shown the plan to be reasonable and necessary. It denied the plan based on the opinions of Dr. Sukhinder Bhangu, physiatrist, expressed in his s. 44 insurer’s examination (“IE”) dated July 8, 2021, and it maintains the same position in this hearing.

25I concur with the respondent, as the applicant has provided minimal medical evidence in support of this treatment plan. She claims in submissions to have been diagnosed with chronic pain, but this is not substantiated in any of the medical evidence before me. While the CNRs of Dr. Neil indicate that the applicant suffered pain as a result of her injuries for some time post-accident, this does not equate to a diagnosis of chronic pain. Chronic pain does not seem to have been formally diagnosed by any medical practitioner. Neither Dr. Neil nor any other medical expert offered specific recommendations or prescriptions regarding the treatment recommended in this plan, either. The plan is essentially self-supporting, which is insufficient without objective medical evidence.

26Moreover, I prefer the medical evidence of Dr. Bhangu. He concluded that the applicant had reached maximum medical improvement from soft-tissue injuries suffered in the accident as of his in-person assessment on June 23, 2021. As a result, he determined that the treatment plan was not reasonable and necessary and recommended that the applicant would benefit most from continuing to engage in daily activities and self-directed exercise.

27In addition, the applicant informed Dr. Bhangu that past physical therapy had not been of much benefit aside from reducing tingling in her left arm and leg, and that her left leg pain had gotten much worse. To me, this further reinforces Dr. Bhangu’s conclusions that facility-based treatment had run its course, as the treatment plan before me consists of therapy similar to that the applicant received in 2018 and 2019.

28Accordingly, the applicant is not entitled to this treatment plan, nor interest.

AWARD

29As no benefits are owing, the respondent is not liable to pay an award.

ORDER

30The application is dismissed and I find that:

i. The applicant is not entitled to NEB of $185.00 per week from July 19, 2018 to June 17, 2020. She has not submitted a Disability Certificate/OCF-3 in accordance with s. 36(2) of the Schedule, nor has she demonstrated that she suffered from a complete inability to carry on a normal life as a result of the accident in accordance with s. 12(1)1 of the Schedule. As there are no benefits owing, no interest is payable.

ii. The applicant is not entitled to $2,939.77 for chiropractic services recommended in a treatment plan dated January 27, 2021, nor interest.

iii. The respondent is not liable to pay an award.