Schofield v. Wawanesa Insurance, 2023 CanLII 72617

Schofield v. Wawanesa Insurance

Citation: Schofield v. Wawanesa Insurance, 2023 ONLAT 21-004177/AABS Licence Appeal Tribunal File Number: 21-004177/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:

Susan Schofield Applicant

and

Wawanesa Insurance Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Mariya Verkhovets, Counsel For the Respondent: Symone Marlowe, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Susan Schofield, the Applicant, was involved in an automobile accident on October 12, 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 Wawanesa Insurance, the Respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the Applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 4, 2019 to date and ongoing?
2. Is the Applicant entitled to medical benefits recommended by 101 Physiotherapy in treatment plans/OCF-18s as follows: a. $2,396.87 ($4,511.87 less $2,115.00 approved) for physiotherapy dated October 15, 2019? b. $3,266.61 for chiropractic services dated December 16, 2019; c. $2,918.83 for chiropractic services dated February 20, 2020;
3. Is the Applicant entitled to assessments recommended by 101 Physiotherapy in treatment plans/OCF-18s as follows: a. $2,460.00 for a neurological assessment dated January 6, 2021? b. $2,460.00 for a chronic pain assessment dated October 30, 2020?
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?

3Prior to the hearing, the Applicant was removed from the Minor Injury Guideline and OCF-18s for psychological treatment and a psychological assessment were approved, therefore these issues are no longer in dispute.

RESULT

4The Applicant is not entitled to non-earner benefits.

5The Applicant is entitled to the treatment and assessment plans in dispute, with interest payable pursuant to section 51 of the Schedule.

6The Applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $1,350.23, with interest in accordance with the Schedule.

BACKGROUND

7The Applicant has been receiving ODSP since 1995 due to chronic hip and back pain following a fall. She also struggled with drug addiction and was receiving methadone treatment at the time of the accident. Her medical history also included emphysema, arthritis, and depression. The Applicant did not have a family physician, but saw a physician at a walk-in clinic, Dr. Kuisma, both pre- and post-accident.

8At the time of the accident, the Applicant was the seat-belted passenger in a vehicle operate by a friend that was rear-ended. Airbags did not deploy, EMS did not attend the scene and she did not require immediate medical attention. After the accident, she sought treatment at 101 Physiotherapy. Dr. Coghlan, chiropractor, completed a disability certificate which identified mostly sprain and strain injuries, and indicates that she was prevented from engaging in substantially all of her ordinary pre-accident activities.

9The Applicant continued to attend physiotherapy at 101 Physiotherapy approximately twice a week until February 2020, and then continued more sporadically until October 2020.

10It appears that the first post-accident visit with a physician was with Dr. Kuisma on January 20, 2020 when the Applicant attended with flu-like complaints (with positive notations for sore throat and fever, and negative for cough, headaches, vomiting or rash). Dr. Kuisma made note of a letter she had received from the Applicant’s physiotherapist suggesting the Applicant get x-rays. The Applicant underwent x-rays of her spine and pelvis, dated February 12, 2020 and reviewed the results with Dr. Kuisma on February 19, 2020. There were heavy degenerative changes to the facets, severe foraminal narrowing, and significant degenerative disc disease her cervical spine, degenerative changes of her hips, and severe degenerative disc disease of her low back. The radiologist recommended she undergo an MRI of her neck and lumbar spine. It doesn’t appear that the MRI was ever arranged.

11The next visit to Dr. Kuisma wasn’t until July 29, 2020 when the Applicant attended after having a fall in the supermarket and reported pain in her right hip. X-rays were arranged, which revealed osteoarthritis. An entry in October 2020 indicates that the Applicant still needed to get bloodwork before an MRI could be arranged.

ANALYSIS

Non-Earner Benefits

12Pursuant 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 Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, she must demonstrate that her life circumstances have changed and that the change is significant enough to continuously prevent her from engaging in substantially all the activities that she engaged in before the accident.

13In her submissions, the Applicant acknowledges that she had significant pre-existing medical issues but contends that she was able to independently manage her daily activities. She did not drive prior to the accident, and was partially able to complete vacuuming, sweeping and engage in social activities prior to the accident. She relies on an OCF-12 Activities of Normal Life (dated October 15, 2019) and submits that she has restrictions with respect to her ability to live independently, maintain shelter, manage her finances, buy food and clothing, navigate the community, and socialize.

14The Respondent submits that the Applicant was able to perform substantially all of her activities of daily living post-accident. I agree with the Respondent.

15The OCF-12 doesn’t actually speak to the ability to live independently or maintain shelter. With respect to socializing, the Applicant indicated that she was “partially” able to complete vacuuming, sweeping, and participate in social activities both pre- and post-accident. Of the 36 activities endorsed on the OCF-12, the Applicant was able to do all of them, either fully or partially. She did not identify any activities which she could not do, or any for which she required assistance post-accident. I find that the Applicant’s reduced capacity does not amount to her being continuously prevented from engaging in substantially all of her pre-accident activities.

16During the chronic pain assessment with Dr. Gofeld, (report dated January 8, 2020) the Applicant reported that she was independent with her self-care but had to wash her hair and climb stairs more slowly. She reported that she was able to continue with her pre-accident household chores including laundry, vacuuming, vacuuming, mopping, sweeping, cooking, meal preparation, and washing dishes, but at a reduced pace with breaks. She had help from her son more often after the accident. The Applicant reported that she used to go for long walks every day for 3-4 hours but has not gone since the accident due to pain and fear of COVID-19.

17Further, during the insurer’s examination with Dr. Hosseini, physiatrist, just a few days earlier on January 2, 2020, the Applicant reported that she had resumed her daily 2-to-3-hour walks, was independent with her activities of daily living including her personal care, shopping, and housekeeping, and continued to enjoy watching television.

18To Dr. Direnfeld, psychologist, (report dated February 13, 2020) the Applicant advised that she had resumed all of her personal care and housekeeping with pacing and modifications when necessary. She reported that her favourite leisure activity was watching television and movies, but she also read occasionally and enjoyed going for walk. She reported that those activities were the same as she enjoyed pre-accident. Socially, she did not report any substantial changes: she enjoyed the company of her son, and friends who typically came to visit twice a week.

19During the occupational therapy assessment with Ms. Wilson, the Applicant reported independence with dressing, grooming, and hygiene, albeit she showered 2-3 times a week instead of 3-4 times. She continued to independently manage the finances, use public transportation as needed, and go for 2-hour daily walks. She shared the responsibility for dinner preparation with her son due to prolonged standing, but was independent with other housekeeping tasks.

20At paragraph 36 of her submissions, the Applicant submits that she was able to manage her drug addition prior to the subject accident. I infer from that she is suggesting that she was not able to manage her drug addiction post-accident. However, the records from First Step Rehab indicate that the Applicant was “unstable on methadone” at every visit and was using street drugs to cope with her pain at least two years prior to the accident. Further, the records provided do not speak to the impact the Applicant’s addiction had on her level of function.

21A reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The Applicant’s self-reported limitations identify a reduced ability to complete some of her 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. I find the Applicant has not met her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident.

22The plan for $4,511.87 was partially approved for $2,115.00, leaving $2,396.87. The treatment plans propose chiropractic treatment, physical rehabilitation, massage, acupuncture, and various other devices and services, to address sprain/strain type injuries, headaches, and sleep issues. They indicate the Applicant has a history of multiple chronic injuries, degenerative arthritis and persisting disability. The treatment aims to reduce pain, increase range of motion and strength, and return the Applicant to activities of daily living.

23The Applicant was diagnosed with soft tissue-type injuries by Dr. Coghlan, and chronic pain, secondary concomitant fibromyalgia, and post-traumatic headaches by Dr. Gofeld, who recommended that she continue rehabilitation.

24The insurer’s examination report from Dr. Hosseini also indicates that the Applicant’s pre-existing headaches, neck pain, bilateral shoulder pain and low back pain were exacerbated by the accident and may prolong her recovery to pre-accident level.

25I find the Applicant is entitled to the disputed treatment plans because they are reasonable and necessary to address the Applicant’s ongoing pain and functional limitations.

Chronic Pain Assessment

26The Respondent submits that the Applicant has not met her onus to prove that she suffered more than soft-tissue injuries, and that there are limited references to pain post-accident, therefore the chronic pain assessment is not reasonable or necessary.

27I find the plan for a chronic pain assessment was reasonable and necessary. As noted above, the insurer’s examination report from Dr. Hosseini indicates that the Applicant’s pre-existing headaches, neck pain, bilateral shoulder pain and low back pain were exacerbated by the accident and may prolong her recovery to pre-accident level. Given the Applicant’s pre-existing chronic conditions that were exacerbated by the accident, the ongoing reports of pain despite the therapy received, and her reduced capacity to engage in her activities of daily living, it was reasonable and necessary for the Applicant to undergo a chronic pain assessment.

Neurological Assessment

28The Respondent submits that the Applicant has not reported any neurological conditions, her family doctor has not recommended a neurological assessment, and the records do not support that a neurological assessment is reasonable or necessary.

29I find that the neurological assessment is reasonable and necessary for the Applicant’s accident-related injuries. The insurer’s examination report of Dr. Hosseini notes that the Applicant reported radicular symptoms to her lower extremities, and he diagnosed chronic headaches exacerbated by the accident.

30The Applicant underwent x-rays of her spine and pelvis, dated February 12, 2020 revealed were heavy degenerative changes to the facets, severe foraminal narrowing, and significant degenerative disc disease her cervical spine, degenerative changes of her hips, and severe degenerative disc disease of her low back. The radiologist recommended she undergo an MRI of her cervical and lumbar spine.

31I find the treatment plan for a neurological assessment was reasonable and necessary to address the Applicant’s symptomology and accident-related impairments.

Interest

32Pursuant to section 51 of the Schedule, the Applicant is entitled to interest on any overdue payment of benefits.

Award

33The Applicant claims entitlement to an award pursuant to section 10 of Reg. 664. She claims that the Respondent failed to assess her claim on an ongoing and good faith basis. She submits that the Respondent never considered or ignored evidence documenting her pre-existing condition and unreasonably delayed to removing her from the MIG or assessing the appropriateness of treatment outside the MIG.

34The Respondent submits that the Applicant is not entitled to an award because it reasonably considered the medical documentation and completed numerous insurer’s examinations to determine her entitlement to the disputed benefits. The Respondent submits that that there was no medical evidence that the Applicant had ongoing pain, and that it removed the Applicant from the MIG on the basis of a psychological impairment when it received sufficient records.

35In the circumstances, I find an award is appropriate. The Respondent ignored the opinion of its own assessor and delayed removing the Applicant from the MIG for over two years. Dr. Hosseini, opined in his assessment dated January 13, 2020 that the Applicant had pre-existing physical impairments that were exacerbated by the accident and may prolong her recovery. Despite having that opinion in January 2020, the Respondent delayed removing the Applicant from the MIG on the basis of a pre-existing medical condition until March 14, 2022. It is now more than three years since the accident, and the Respondent has continued to maintain its denial of the treatment plans and the Applicant has not been able to access certain benefits as a result of the Respondent’s failure to properly adjust its file.

36Under 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. In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the Respondent’s conduct; (ii) the vulnerability of the Applicant; (iii) the harm or potential harm directed at the Applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.

37In this case, the conduct should be deterred. The Respondent has provided no excuse for having ignored the conclusion of its own assessor. It erroneously kept the Applicant in the MIG for two years and gained a monetary advantage in doing so. The Applicant is a vulnerable individual who had pre-existing physical and psychological impairments. I find that the Applicant is entitled to an award in the amount of $1,350.23, representing 10% of the total benefits payable in the disputed treatment plans, due to the Respondent’s unreasonable withholding and delay in removing the Applicant from the MIG.

ORDER

38For the reasons set out above, I order that:

i. The Applicant is not entitled to non-earner benefits. ii. The Applicant is entitled to the treatment and assessment plans in dispute, with interest payable pursuant to section 51 of the Schedule. iii. The Applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $1,350.23, with interest in accordance with the Schedule.