Licence Appeal Tribunal File Number: 20-004415/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:
Harjit Kaur
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Harjit Kaur, Applicant
For the Respondent: Mike McCormick, Adjuster Nisaa Khan, Counsel
Court Reporter: Taylor Boden
Heard by Videoconference: November 14, 2022
BACKGROUND
1The applicant was involved in an automobile accident on September 13, 2018, 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 certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2On September 13, 2018, the applicant was riding her bicycle through a pedestrian crossing when she was struck by a tow-truck that was turning right. The applicant fell off her bike and on to her right side, hitting her head. She was not wearing a helmet. She did not experience any loss of consciousness. The applicant was taken by ambulance to a local hospital where she was assessed and released the same day. She reported almost immediate and ongoing right sided body pain that continues to limit her ability to stand for prolonged periods and to sleep uninterrupted, dizziness, and headaches.
3The applicant has not returned to work since the accident. She is also a single mother to three children that were 14, 13, and 9 years of age at the time of the accident.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 23, 2019 to September 13, 2020?
ii. Is the applicant entitled to $3,751.00 for chiropractic and massage therapy services, proposed by Mississauga Active Physiotherapy in a treatment plan (“OCF-18”) that was denied on March 25, 2019?
iii. Is the applicant entitled to $2,992.00 for chiropractic and massage therapy services, proposed by Mississauga Active Physiotherapy in an OCF-18 that was denied on September 23, 2019?
iv. Is the applicant entitled to interest on overdue payment of benefits?
RESULT
5I find that:
i. The applicant is not entitled to a NEB from May 23, 2019 to September 13, 2020.
ii. The applicant is not entitled to $3,751.00 for chiropractic and massage therapy services, as proposed by Mississauga Active Physiotherapy in an OCF-18 that was denied on March 25, 2019.
iii. The applicant is not entitled to $2,992.00 for chiropractic and massage therapy services, as proposed by Mississauga Active Physiotherapy in an OCF-18 that was denied on September 23, 2019.
iv. The applicant is not entitled to interest.
ANALYSIS
Non-Earner Benefit
6The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
7Section 3(7)(a) of the Schedule states that a person suffers from ‘a complete inability to carry on a normal life’ if, as a result of an accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
8‘Substantially all’ is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean ‘more than most, a majority, but not all activities.’1
9Heath v. Economical Mutual Insurance Company2 outlines several principles for the determination of entitlement to a NEB as follows:
i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;
ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;
iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;
iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the applicant must prove disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted);
v. ‘Engaging in’ should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as ‘engaging in’ that activity; and,
vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.3
10The applicant was not working at the time of the accident. She last worked in early 2018 in England as a customer service representative and stopped working because her contract ended.
11The applicant and her three children came to Canada in April 2018. They were in Canada for approximately five months before the accident occurred. The applicant has extended her temporary VISA every six-months, but she is not eligible to work in Canada because of her VISA status.
12The respondent submits that the applicant has provided no evidence or records with respect to daily activities she carried out before the accident. The applicant did, however, testify that since the accident she has continued to go grocery shopping, do some cooking, socialize with friends, supervise her daughter making meals, go to the mall shopping with a friend, make lunches for her children, and meet her children when they return home from school. The applicant testified that she has been unable to return to playing sports, going to the movies, and reading books, mainly because of her ongoing dizziness.
13According to the respondent, limitations alone are not enough to support entitlement to NEB. The applicant must demonstrate a complete inability to perform activities of daily living, which she has failed to do.
14I agree with the respondent in that the medical evidence on file does not persuasively support that the applicant has suffered a complete inability to carry on normal life as a result of the accident. For example:
a. In February 2019, Dr. Neilank Jha, neurosurgeon, concluded that the applicant did not suffer a complete inability to carry on normal life and that she could return to select tasks of employment. I find that it is important to note that Dr. Jha’s assessment was conducted at the request of the applicant’s representative at the time.
b. In April 2019, Ms. Leslie Hisey, occupational therapist, noted that the applicant would walk to nearby shops with one of her children, continued to make lunches for her children, and was independent with respect to her self-care.
c. In May 2019, Dr. Arta Bedaj noted that the applicant continued walk and pick up her children from school. She also had good functional status and functional ranges of motion. Dr. Bedaj concluded that the applicant could participate in most activities of daily living, and she had no objective neurological findings. Dr. Bryan Temple, neurologist, who assessed the applicant in January 2022 concurred that the applicant’s neurological examination was normal and that the applicant did not suffer a complete inability to carry on a normal life.
d. In September 2020, Dr. Louise Koepfler’s psychological assessment concluded that there was no valid or reliable data to conclude that the applicant suffered a complete inability to carry on a normal life as a result of her accident.
15When I consider the totality of evidence presented, the applicant has failed to convince me that it is more likely than not that she suffered an impairment that continuously prevented her from engaging in substantially all of the activities in which she was ordinarily engaged in before the accident. The medical evidence is not persuasive, and it does not support the applicant’s subjective report. As a result, I find that the applicant has failed to meet her onus of establishing an entitlement to NEB. While I accept that the applicant has limitations as a result of the accident, I find that those limitations do not equate to a complete inability to carry on a normal life.
Chiropractic and Massage Therapy Services
16I am not persuaded that chiropractic and massage therapy services in the amounts of $3,751.00 and $2,992.00 are reasonable and necessary pursuant to the Schedule.
17The applicant testified that acupuncture helped somewhat with sleeping, but no other mention was made as far as any benefit she received from treatment when she was attending. Aside from the OCF-18s completed by Mississauga Active Physiotherapy, the applicant has not put forth any medical opinion or clinical notes and records that would support the fact that the treatment plans in dispute are reasonable and necessary. Apart from the applicant’s own self-report, there is very little evidence that she is benefitting in any lasting way from the treatment that has been proposed.
18The respondent relies on the independent examination findings of Dr. Bedaj in March and September 2019. Dr. Bedaj found that both treatment plans in dispute were not reasonable or necessary. He confirmed that the applicant had reached maximum medical recovery and that she did not require any further facility-based physical rehabilitation services.
19The respondent submits that the applicant has not presented any objective evidence substantiating the need for chiropractic or massage therapy services around the time that the treatment plans in dispute were being proposed. The respondent considered the applicant’s testimony that she did experience some improvement with treatment, but she did not provide any objective evidence supporting that claim. I agree.
20Upon review of the treatment plans in dispute, I note that the goals of treatment, the subjective improvement, and the proposed treatment were relatively unchanged between the plan that was denied in March 2019 and the plan proposed six months later.
21Dr. Imraan Alibhal of Mississauga Active Physiotherapy noted that the applicant reported a nominal 10 percent improvement in her symptoms on the treatment plan that was denied on March 25, 2019, and a 20 percent improvement in her symptoms on the plan that was denied on September 23, 2019. Dr. Alibhal did not, however, provide any objective findings or testing outcomes that would corroborate the applicant’s subjective report. Dr. Alibhal also failed to provide any reason for proposing essentially the same primarily passive facility-based treatment nearly one year after the accident.
22Apart from the treatment plans in dispute and Dr. Bedaj’s reports, Dr. Jha makes the only other comment with respect to the reasonableness and necessity of ongoing physical rehabilitation. In February 2019, he noted that physiotherapy exercises may be of benefit to the applicant to gently increase her physical activity and stamina. According to the applicant’s testimony, however, she was already doing physiotherapy exercises at home.
23In the absence of supportive medical evidence or objective findings corroborating the applicant’s self-report that the proposed treatment was benefitting her, I find that she has failed to meet the onus of establishing that the disputed plans were reasonable and necessary. I find the reports of Dr. Bedaj to be particularly persuasive in the absence of any contradictory evidence. Dr. Bedaj found that the applicant had reached maximum medical recovery, and Dr. Jha concurred with Dr. Bedaj that only home-based active exercises, as opposed to passive facility-based physical rehabilitation, continued to be warranted around the time that the plans in dispute were proposed.
ORDER
24The application is dismissed, and I find that:
i. The applicant is not entitled to a non-earner benefit.
ii. The applicant is not entitled to $3,751.00 for chiropractic and massage therapy services.
iii. The applicant is not entitled to $2,992.00 for chiropractic and massage therapy services
iv. The applicant is not entitled to interest as none of the issues in dispute are payable.
Released: February 2, 2023
__________________________
Tyler Moore
Vice-Chair
Footnotes
- 16-003195 v State Farm Insurance company, 2017 CanLII 99136 (ON LAT) at para. 10.
- 2009 ONCA 391 (‘Heath’).
- IBID. at para. 50.```