Licence Appeal Tribunal File Number: 21-000811/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:
Heba Abubaker Mohamed Hassan
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Terry Prowse
APPEARANCES:
For the Applicant:
Heba Abubaker Mohamed Hassan, Applicant
Ivy So, Paralegal
For the Respondent:
Christine Mansbridge, Adjuster
Marcin Panasewicz, Counsel
HEARD: by Videoconference:
July 18, 19 and 20, 2022
DECISION
BACKGROUND
1The applicant was involved in an automobile accident on November 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule effective September 1, 2010, including amendments effective June 1, 2016 (“Schedule”). The applicant was denied certain benefits by the Respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution to the dispute.
2To consider the matter, the Tribunal scheduled a hearing for July 18, 19 and 20, 2022.
MOTION
3On June 28, 2022, the respondent submitted a Notice of Motion, seeking an order to exclude portions of the applicant’s evidence, specifically the applicant’s Catastrophic (CAT) Assessment Reports. The motion was heard at the start of the hearing. The respondent argued that the applicant did not disclose the reports, as evidence, within the timeframe directed by the Tribunal in its June 30, 2021 Case Conference Report and Order. The respondent further submitted that the reports were irrelevant to the hearing, as they did not speak to the issues in dispute. Alternatively, in the event that I allowed the reports to be admitted, the respondent requested that the hearing be adjourned until they can be reviewed, and its own CAT Insurance Examination reports obtained.
4The applicant objected to the exclusion of the CAT Assessment Reports. While discussing the timeliness of its submission, the applicant alleged that the Case Conference Adjudicator made an error when stating, “On agreement, on or before May 16, 2022 the parties must conduct the mandatory exchange of documents that they intend to rely upon at the hearing…”. She stated there was no such agreement during the case conference but, when queried, she acknowledged that she did not inform the Tribunal of the alleged error. She stated that she was not disputing the Applicant’s catastrophic impairment status but wanted the CAT Assessment Reports accepted as evidence for the information they contained about the applicant’s injuries and attendant care needs. When asked whether this information was available within other evidence submitted for the hearing, she acknowledged it likely was.
5I order that the applicant’s CAT Assessment Reports be excluded from this proceeding.
6Rule 9 of the Tribunal’s Common Rules of Practice and Procedure requires every party to disclose to every other party the evidence they intend to rely upon at the hearing at least ten days prior to hearing, or as otherwise ordered by the Tribunal. Such an order exists, in the form of the Case Conference Report and Order. Rule 9.4 states that a party who fails to comply with the disclosure obligation may not rely upon the late evidence at the hearing without the consent of the Tribunal. For the reasons that follow, I decline consent.
7First, notwithstanding the applicant’s assertions that the Case Conference Report and Order incorrectly stated that the parties agreed to the document production date, the order clearly set out May 16, 2022 for the mandatory exchange of documents. The applicant did not meet that deadline. If the Tribunal erred in describing this disclosure deadline as being on consent, the applicant did not inform the Tribunal and did not submit a Notice of Motion within the prescribed 10-day timeframe prior to the hearing, to request inclusion of the CAT reports. Secondly, even if there was no mutual consent, the disclosure deadline date was ordered by the Tribunal and the applicant was bound to it, subject to any subsequent order modifying the obligation.
8Thirdly, Section 15 of the Statutory Powers Procedure Act (SPPA) clearly describes what is admissible in evidence at hearing and that the evidence be “…relevant to the subject-matter of the proceeding…”. It further describes that “…the tribunal may exclude anything unduly repetitious”. Catastrophic impairment is not an issue in dispute in this hearing. The applicant’s CAT Assessment Reports would play a minimal, if any, role in the issues in dispute at this hearing. Further, according to the applicant, relevant information that would be in the CAT Assessment Reports is likely available elsewhere in its document book. As a result, I am satisfied that the probative value of the CAT Assessment Reports is outweighed by the prejudicial effect to the respondent, and I therefore do not admit these reports into evidence.
MEDICAL/ACCIDENT HISTORY
9Prior to the accident, on July 9, 2018, the applicant presented with on and off left knee pain, noting that she had been told 7 years previous that she had osteoarthritis. She also complained of pain in her shoulders. Dr. Mohamed Izzeldin recorded that her right-shoulder range of motion was reduced. He diagnosed her with osteoarthritis. She also underwent diagnostic imaging of both knees, which identified mild degenerative changes in the medial compartments of both knees, mild degenerative changes in the lateral compartment of the right knee and mild to moderate patellofemoral compartment degenerative changes bilaterally.
10On August 3, 2018, she presented to medical personnel and was advised to make another appointment for her moods. Dr. Izzeldin recorded that she had not slept since coming to the country, was eating one meal per day, was working but stopped because of loss of interest, was not motivated, was always tired, and her social support was comprised of friends only.
11The accident occurred on November 14, 2018. According to an ambulance call report, there was no apparent loss of consciousness. The EMS provider recorded that the applicant was touching the right side of her neck but observed no obvious trauma to her head/neck. The EMS provider also recorded that there was no obvious trauma to her chest, abdomen or extremities and her back/pelvis was stable. The applicant indicated some discomfort where the seatbelt laid across her chest. She was taken to the London Health Sciences Centre.
12The applicant returned to the hospital on November 20, 2018, complaining of an increase in generalized pain, but her primary complaints involved her right leg and lateral neck. She reported no new injuries or symptoms. On November 23, 2018, an attending physician reviewed X-rays of her right knee and noted that there was evidence of significant patellofemoral arthritis with prominent trochlear and patellar osteophytes. While the X-rays did not show a fracture, the physician ordered a CT scan to confirm. The applicant underwent a CT scan on December 10, 2018, which showed an undisplaced fracture of the inferomedial patellar facet.
13On occasion, the applicant continued to attend medical facilities with various complaints of pain, predominately to her lower back and knees. She was also diagnosed with depression, although she initially denied it. At times, she attributed her mental health issues to the accident, although medical professionals appeared to relate it more to her being separated from her husband and children, who were in Sudan.
ISSUES IN DISPUTE
14The following issues are in dispute:
a. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 21, 2018, to November 14, 2020?
b. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from November 5, 2018, to date and ongoing?
c. 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?
d. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
The applicant is not entitled to a non-earner benefit
15Section 12(1) of the Schedule provides that an insurer must pay a non-earner benefit to an insured person who has sustained an impairment as a result of an accident and suffered a complete inability to carry on a normal life, as a result of and within 104 weeks after the accident,
16Section 3(7)(a) of the Schedule 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.”
17To determine whether a claimant meets the criteria for entitlement to a non-earner benefit, I am guided by the Ontario Court of Appeal’s decision in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391. At paragraph 50 of Heath, the Court adopted general principles to assess whether the criteria were met. To summarize, the appeal judges adopted the following:
a. To analyze whether a claimant suffered a complete inability to carry on a normal life, the starting point is to compare the claimant’s pre- and post-accident activities and life circumstances, while recognizing that the nature of the claimant’s post-accident condition may deem an analysis to be unnecessary;
b. An assessment of the pre-accident activities and life circumstances requires consideration of a time frame over a reasonable period prior to the accident, depending on the facts of the case;
c. When determining whether “substantially all” of the pre-accident activities had been affected to the required degree, all of the pre-accident activities should be considered, with greater weight potentially applied to those activities that the claimant identified as being important to his/her pre-accident life;
d. That it is incumbent on a claimant to establish that changes to the pre- and post-accident activities amounted to being continuously prevented from engaging in substantially all pre-accident activities, with “continually prevented” meaning a “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”;
e. That “engaging in” an activity should be interpreted as more than post-accident attempts to engage in an activity that a claimant could perform before the accident, and the quality of performance must also be considered; and
f. Where pain is a primary factor that allegedly prevents the claimant from engaging in the pre-accident activities, the question is whether the pain experienced at the time or subsequent to the activity is such that the individual is practically prevented from engaging in those activities.
18The applicant testified that after the accident, she was diagnosed at the hospital with a broken right knee. She also stated that she complained of pain in her back and neck. She was treated, given a wheelchair and discharged. She returned after one week, due to pain. She testified that prior to the accident, she was living a normal life. She had pain in her knee, but it didn’t stop her. She didn’t take pain killers. She contended that before the accident, she was learning English at school, was active with the community and her home, and could accomplish activities of daily living by herself. She enjoyed cooking for her friends and had no issues driving. Learning English and attending Mosque were very important to her.
19She testified that in the two years following the accident, her injuries included severe pain in her neck. Although she was prescribed pain medication of one pill, three times per day, it did not help. She had to double the amount. She started to put more weight on her left leg, which caused that to hurt too. She lost motivation and felt like her life stopped. She ignored her friends. She could not cook, clean or shop by herself. A friend cleaned her clothes. Her household activities were limited by pain. She reported that she couldn’t drive for long distances and only did so when she really needed to. Now her driving is better, although she is still afraid of big cars and trucks. She stated that she cannot walk to, sit at or attend school because the pain is too severe. She needed to shower sitting down.
20The applicant confirmed in cross-examination that after the accident she could drive but did not do so if she was not feeling well. She confirmed being able to travel internationally by plane, being able to sit onboard for many hours and be away from home for an extended period. She confirmed being able to communicate with her children, via Skype, which was extremely important to her.
21The applicant relies on a disability certificate completed by Doctor of Chiropractic, Dr. Ahmed Seksek, 6 days after the accident. I give less weight to this Disability Certificate because he listed injuries as a result of the accident that were not diagnosed previously by other doctors/specialists, such as a concussion and tension headaches. Dr. Seksek further indicated that the applicant did not have any pre-accident diseases, conditions or injuries that would affect her ability to perform described activities, even though the pre-accident period medical records clearly documented several pre-accident issues with bilateral knee osteoarthritis/pain, shoulder pain, obesity, diabetes mellitus, energy, sleep, and depression. Dr. Seksek clearly indicated “Yes” to the question of whether the applicant suffered from a complete inability to carry on a normal life, but when he was required to explain his answer, left the field blank. I find the OCF-3 is not sufficiently reliable to support the applicant’s claim.
22There is no question that the applicant had right knee pain before the accident, due to osteoarthritis. There is no question that because of the accident, she suffered an undisplaced fracture of the inferomedial patellar facet and continued to have knee pain. There is also no question that her ability to carry on a normal life would have been affected, to some degree. However, the evidence does not support a finding that her accident-related injuries/sequelae continuously prevented her from engaging in substantially all of the activities that she would have ordinarily engaged in after the accident, including during the acute phase of her injury. While she initially reported anxiety while driving, she was able to do so and showed significant improvement after participating in driver desensitization. She could and did travel on a lengthy flight to Sudan. These findings do not reflect that substantially all the pre-accident activities had been affected to the required degree, or that the applicant suffered a complete inability to carry on a normal life.
23The onus of establishing entitlement to non-earner benefits rests with the applicant. The burden was not met, in this instance. The applicant is not entitled to a non-earner benefit.
The Applicant is not entitled to attendant care benefits
24Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person, as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Fixing Long-Term Care Act, 2021 or a chronic care hospital.
25In support of her claim, the applicant relies on an Assessment of Attendant Care Needs (Form 1), completed by occupational therapist, Mary Vitali-Perrier on November 25, 2018. Miss Perrier assessed that the applicant required $10,238.45 per month for attendant care needs. The difficulty with the assessment is the occupational therapist provided no information regarding what information she used to reach her findings or, more importantly, which accident-related injuries/sequelae she considered to determine which attendant care needs were reasonable and necessary. Although documentation did refer to an Occupational Therapy Home Assessment report completed by Miss Perrier on November 25, 2018, the report was not included in the applicant’s evidence package.
26The respondent relies on Assessment of Attendant Care Needs forms by occupational therapist Leslie Hisey in March 2019, with an addendum from May 2019, and by occupational therapist Daniel Horban in November 2021. The assessments were detailed and clearly described the methodology of the assessments, the information which was considered during the assessments, and the findings of each assessor. In each case, the assessor determined that the applicant did not require attendant care benefits. Their findings were clearly consistent with equally detailed orthopaedic and psychological assessments for attendant care needs by orthopaedic surgeon Dr. O. Gharsa in May 2019, orthopaedic surgeon Dr. J. Auguste in September 2021 and psychologist Dr. C. Bradbury in September 2021. Given the level of detail of the reports and clear and logical indications of how the assessors arrived at their conclusions, I prefer the information contained within the respondent’s assessors’ reports that determined that the attendant care benefits were not reasonable and necessary as result of the November 2018 motor vehicle accident.
27The applicant bears the burden of proving entitlement to ACBs, on a balance of probabilities. After considering the evidence and submissions of both parties, I cannot reasonably conclude that she met her burden, and she is not entitled to any attendant care benefits.
The applicant is not entitled to an award
28Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. As I have found that no payment of benefits were owing and therefore none were unreasonably withheld or delayed, there is no basis upon which to consider an award in this matter.
The applicant is not entitled to interest
29As no benefits are owing, no interest is payable.
CONCLUSION
30The applicant’s claim is dismissed. I find the applicant is not entitled to a non-earner benefit of $185.00 per week from November 21, 2018, to November 14, 2020, and is not entitled to attendant care benefits in the amount of $3,000.00 per month from November 5, 2018, to date and ongoing, as a result of the November 2018 automobile accident. Therefore, an award or interest is not payable.
Released: February 6, 2023
Terry Prowse
Adjudicator
