Citation: Lewis v. Travelers Canada, 2023 ONLAT 21-008082/AABS

Licence Appeal Tribunal File Number: 21-008082/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:

Annmarie Lewis

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Annmarie Lewis, Applicant Kinesa Ravichandran, Law Clerk

Godfrey Bakeerathan, Counsel

For the Respondent:

Sonya E Reid, Counsel

Heard by Videoconference:

August 2, 3, and 4, 2022

BACKGROUND

1Annmarie Lewis (the “applicant”) was involved in an automobile accident on January 4, 2021, 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 and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The matter proceeded to a three-day videoconference hearing. On behalf of the applicant, I heard the testimony from the applicant and her niece Sherrich Lewis (“Sherrich”). The respondent did not present any witnesses.

ISSUES IN DISPUTE

3The issues to be decided in this hearing are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 4, 2021 to date and ongoing?

2. Is the applicant entitled to $3,244.58 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan (OCF-18) dated April 16, 2020?

3. Is the applicant entitled to $2,825.37 for chiropractic services, recommended by Humber Civic Care Centre in a treatment plan (OCF-18) dated June 23, 2021?

4. Is the applicant entitled to $2,200.00 for physiatry assessment, recommended by Toronto Independent Medical Evaluator in a treatment plan (OCF-18) dated August 3, 2021?

5. Is the applicant entitled to $3,795.50 for chiropractic services, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) dated September 13, 2021?

6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

7. Is the applicant entitled to interest on any overdue payment of benefits?

8. Is the respondent liable to pay $100.00 in costs?

RESULT

4I find that the applicant has not established, on a balance of probabilities, that she suffers a complete inability to carry on a normal life, and therefore, is not entitled to the Non-Earner Benefit.

5The applicant is not entitled to the four proposed treatment plans, nor an award. As no outstanding benefits are owing, no interest is payable.

6The applicant’s request for costs is dismissed.

ANALYSIS

Non-Earner Benefit (NEB)

7Under s. 12 of the Schedule, an insurer shall pay an NEB of $185 per week to an insured person who suffers “a complete inability to carry on a normal life” as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

8For the purpose of applying s. 12, paragraph 3(7)(a) of the Schedule states that an insured person suffers a complete inability to carry on a normal life when, as a result of the accident, the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities they ordinarily engaged in before the accident.

9The guiding principles for assessing a “complete inability to carry on a normal life” are set out in Heath.¹ A pre- and post-accident functionality comparison is made with the following factors in mind:

a) The applicant’s activities and life circumstances are assessed over a case specific period of time before the accident.

b) “Substantially all” means all the pre-accident activities the applicant ordinarily engaged in. Greater weight may be given to activities the applicant identifies as being important to their pre-accident life.

c) “Continuously prevent" from engaging in pre-accident activities means the accident-related incapacity remains uninterrupted.

d) “Engaging in" is interpreted from a qualitative perspective and requires more than isolated attempts or going through the motions to perform activities.

e) Where pain is a primary factor, the focus is not on whether applicant can physically do these activities, but whether pain “practically prevents” the applicant from engaging in these activities.

10Ms. Lewis gave extensive testimony on how her ability to carry on a normal life was impacted by the severe pain she experienced after the accident.

11She is the mother of two boys, ages 16 and 4. Before the accident she catered to their needs which included cooking, cleaning their home, laundry, and bathing her youngest child. After the accident, she experienced debilitating pain that prevents her from engaging in these activities. She now relies on her niece Sherrich and her older son to complete most household chores and to assist with the care of her 4-year-old son.

12Pre-accident, the applicant worked as a self-employed cleaner. She regularly cleaned the homes of 10 clients. Since the accident, she made two unsuccessful attempts to clean homes. She is unable to perform her work duties because of accident-related pain.

13Other areas in her life were also affected. She was in a long-term relationship that ended in February or March 2021, in part, because she was in too much pain to engage in intimate relations.

14Many of the details in Ms. Lewis’s testimony were repeated in the testimony of Sherrich, her niece; e.g., the applicant’s post-accident inability to work and complete household chores. Of greatest importance to the applicant is her inability to look after her youngest son as well as she did before the accident.

15The applicant submits that the corroborating testimony and the report of Dr. Wong, a physiatry consultant, establish that the applicant has experienced severe pain since the accident that has continuously prevented her from engaging in the activities she ordinarily engaged in before the accident. As such, she argues that she is entitled to an NEB.

16In my view, the evidence does not support that she experiences constant debilitating pain since the accident. For this reason, I find that the applicant is not entitled to an NEB. My findings follow.

The applicant’s pain

17The applicant does not have a family doctor. She regularly relied on Dr. MacCallum, a physician at the Davenport-Pert Centre, for healthcare before and after the accident. The first time the applicant consulted with Dr. MacCallum post-accident was on February 2, 2021. This was a month after the accident. The purpose of this consultation was to deal with nasal allergies. If the applicant was in severe pain, then it is reasonable to expect that this would have been discussed and documented in the clinical notes. There is no mention of the applicant reporting pain in the clinical notes.² This is inconsistent with the applicant’s testimony that she experienced debilitating pain since the accident.

18The applicant testified that Dr. McCallum prescribed Lyrica to her. She finished the Lyrica but did not take it again because it was too expensive. The applicant provided receipts for other prescriptions.³ She purchased pregabalin on July 7, 2021 and naratriptan on April 2, 2021. There are no other records in evidence of her purchasing prescription pain medication.

19The applicant testified that she could not remember when she last took prescription pain medication. The inconsistent use of prescription pain medication does not support the premise that the applicant is in continuous, debilitating pain.

20On August 23, 2021, the applicant declined Dr. McCallum’s offer of further analgesics.⁴ The applicant testified that she does not remember doing this.

21The clinical notes on June 22, 2022 of Dr. Dima Shirine Moukheiber, a physician at the Davenport-Pert Centre, documents that the applicant manages pain through the daily use of baby aspirin.⁵

22At her hearing, the applicant testified that she currently manages pain by taking 4-6 tablets per week of Tylenol and Advil.

23The clinical notes and records on April 4, 2022 of Dr. Dima Shirine Moukheiber state that the applicant is currently stable and able to function, although she does have days that are really difficult and days that are very good.⁶ This is consistent with part of the applicant’s testimony. She stated that she has good days and bad days. This is a further indication that the applicant has not experienced continuous, debilitating pain since the accident.

24An insurer’s examination (IE) took place on June 1, 2021. The applicant was examined by Dr. Farooq Ismail, a physiatrist. At this examination, she reported pain in her shoulders, back, and headaches.

25Dr. Ismail concluded that the applicant sustained soft tissue injuries in the cervical spine as well as her lumbar spine from the accident. He further stated that his examination did not reveal any ongoing accident-related impairments.⁷

26The applicant argues that Dr. Ismail did not conduct a proper examination and that the report of the applicant’s expert, Dr. Joseph Wong, should be given more weight.

27Dr. Wong examined the applicant on August 9, 2021. He found that the applicant sustained soft tissue injuries from the accident and had since developed chronic pain.⁸ He recommended a number of treatments for the applicant. In particular, he states that the applicant “will be required to utilize analgesic medication for control of pain.”⁹

28Dr. Wong opines that the report of Dr. Ismail is “unfair” to the applicant because the soft tissue in her neck, back, and extremities was not examined by Dr. Ismail. In my view, this concern is unfounded. Dr. Ismail conducted a physical examination. He provides a detailed account of the various tests performed by the applicant during the examination. He did find that the applicant continues to have pain in soft tissue areas. This cannot be characterized as unfair.

29Both doctors found that the applicant sustained soft tissue injuries and has ongoing pain related to the accident. The main difference between the two reports is that Dr. Ismail found that the applicant has no accident-related impairments while Dr. Wong made a diagnosis of chronic pain.

30Dr. Wong recommended a “comprehensive chronic pain program” that required the applicant to use analgesic medication.¹⁰ Two weeks later, the applicant declined Dr. McCallum’s offer of analgesics. Since then, she has managed pain with baby aspirin and modest amounts of Tylenol and Advil. The action taken by the applicant does not accord with the chronic pain findings of Dr. Wong.

31I give more weight to the report of Dr. Ismail. He found that the applicant still has accident-related pain but does not have an accident-related impairment. This is consistent with the applicant’s modest use of over-the-counter pain medication.

32For these reasons, I find that the applicant has not established, on a balance of probabilities, that she suffered an inability to carry on a normal life due to debilitating pain. However, the applicant also submits that she is eligible for an NEB due to her psychological impairments, which I turn to next.

The applicant’s psychological impairments

33The applicant argues that her psychological impairments prevent her from engaging in substantially all of the activities she ordinarily engaged in before the accident.

34The applicant testified that she has low mood. This impacts her ability to perform household chores and spend time with her family and friends.

35Low mood also causes her to not want to be around anyone. The applicant used to enjoy spending time with her children. She liked taking her kids to the movies, the park, shopping, and on trips to Niagara Falls. Since the accident, she spends less time with her children. She also spends less time with family and friends.

36She feels sad, frustrated, and stressed because she cannot take care of her kids the way she did before the accident.

37Post-accident, she is fearful of driving. She has flashbacks of the accident and nightmares.

38An IE was conducted on July 13, 2021 by Dr. Rod Day, a psychologist. He diagnosed the applicant with Major Depressive Disorder.¹¹ The insurer removed the applicant from the Minor Injury Guideline (MIG) based on this finding.¹²

39Dr. Day found that the applicant has symptoms of Post Traumatic Stress Disorder (PTSD), but that these symptoms do not meet the full diagnostic criteria for PTSD.¹³ He issued a subsequent report where he opined that the applicant’s psychological symptoms are not the type or of the magnitude to render her completely unable to carry on a normal life.¹⁴

40Dr. Betty Kershner, a psychologist, examined the applicant on December 17, 2021 and diagnosed her with PTSD.¹⁵ She opined that the applicant suffers a complete inability to carry on a normal life.

41With regard to the two PTSD assessments, I give more weight to the report of Dr. Day. He provides an analysis of the four areas he considered. He describes in detail how he assessed the applicant’s symptoms and found that they do not meet the full diagnostic criteria for PTSD. Dr. Kershner diagnosed PTSD based on a psychometric score. No other analysis is provided. As such, Dr. Day’s explanation is more transparent, more fully justified, and therefore, more reliable.

42With regard to their opinions on whether the applicant has psychological impairments that cause her to have a complete inability to carry on a normal life, Dr. Day’s report is internally consistent. He diagnosed the applicant with Major Depressive Disorder and this does impact her ability to function, but not enough for her to suffer a complete inability to carry on a normal life.

43Dr. Kershner’s report is internally inconsistent. She finds that the applicant has PTSD and suffers a complete inability to carry on a normal life. Yet in the same report, she documents the applicant continuing to work light jobs for money¹⁶ and that the applicant continues to drive when necessary.¹⁷ This information indicates reduced function, but not a complete inability to carry on a normal life.

44The clinical notes and records of Dr. Paz Gajardo, a physician at the Davenport-Perth Centre, shows that the applicant’s prescription for the anti-depression medication Duloxetine was doubled on January 20, 2022.¹⁸ At the follow-up appointment two week later, Dr. Gajardo documents that the applicant was feeling “++better” on the higher dosage.¹⁹ This is an indication that the Major Depressive Disorder diagnosed by Dr. Day is treatable with medication.

45Consequently, I find that the applicant has not established, on a balance of probabilities, that she has suffered a complete inability to carry on a normal life due to her psychological impairment.

46For all these reasons, she not entitled to a NEB.

Four Treatment Plans

47Sections 14 and 15 of the Schedule state that the insurer shall pay for all medical benefits incurred by or on behalf of the insured person if they are reasonable and necessary as a result of the accident. The burden of proof is on the applicant to demonstrate each claimed treatment plan is reasonable and necessary. To do so, the applicant’s evidence should demonstrate the identified goals of treatment are reasonable, the goals are being or will be met to a reasonable degree, and the overall cost in terms of time and finance to achieve these goals is reasonable, taking into consideration both the degree of success and the availability of alternatives.

48Three of the treatment plans in dispute, issues 2, 3 and 5, are for chiropractic treatment and list pain relief as one of the treatment goals. The applicant submits that the respondent ignored the decision of the Financial Services Commission (FSCO) in Violi and General Accident Assurance Company of Canada²⁰ when it denied these treatment plans. Specifically, the respondent did not consider that pain relief is a legitimate medical and rehabilitative goal that may be found to be reasonable and necessary medical treatment under s.15 of the Schedule.

49The applicant is correct insofar as the respondent not explicitly addressing the goal of pain relief in their denials.²¹

50Treatment plans alone are not sufficient enough to establish entitlement. Objective supporting evidence is needed to show that the treatment plans are reasonable and necessary.²²

51The applicant did not point to any objective evidence which shows that chiropractic treatment is reasonable and necessary.

52None of the medical reports in evidence or the clinical notes and records of Davenport-Perth Centre recommend chiropractic treatment.

53There is no objective evidence to show that the treatment plans in issues 2, 3, and 5 are reasonable and necessary. As such, I find that the applicant is not entitled to these plans.

54The treatment plan in issue 4 is for a physiatry assessment. The applicant submits that the clinical notes and records from Davenport-Perth Centre show that two different physicians recommended that the applicant be referred to a chronic pain specialist.²³ This constitutes compelling evidence that this treatment plan is reasonable and necessary.

55The clinical notes show that the applicant consulted the physicians at the Davenport-Perth Centre regarding her pain. The physicians separately referred the applicant to a chronic pain specialist.

56When these referrals to specialists are considered against the IE, I give more weight to the IE.

57Dr. Ismail is a physiatrist. He is a specialist in this field and his opinion is more authoritative. As well, he physically examined the applicant and determined that she has subjective complains of pain, but no accident-related impairment. His assessment is far more comprehensive and substantial than the routine specialist referral cited by the applicant.

58Under these circumstances, there is not enough objective evidence to find that the treatment plan for a physiatry assessment is reasonable and necessary. Consequently, I find that the applicant is not entitled to this treatment plan.

AWARD and INTEREST

59Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Thus, no award is payable.

60Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

COSTS

61The applicant submits that the respondent should pay $100.00 in costs for exceeding the expected time limits in their lengthy cross-examination of the applicant. This caused Sherrich, the applicant’s witness, to miss time from work.

62The respondent submits that no costs are payable to the applicant. The respondent needed more time for questioning because the examination-in-chief was also lengthy.

63Under section 19.4 of the Tribunal’s Common Rules of Practice and Procedure (“Common Rules”), the Tribunal considers unreasonable, frivolous, vexatious, or bad faith conduct when determining whether costs should be awarded. In my view, the respondent did not engage in any of the before mentioned misconduct. The cross-examination was somewhat lengthy, but proportional to the examination-in-chief. The questions were relevant and proper.

64The standard for awarding cost is high.²⁴ There is not enough here to meet this high standard. Consequently, I dismiss the applicant’s request for costs.

ORDER

65The applicant is not entitled to the Non-Earner Benefit or the four treatment plans.

66The applicant is not entitled to an award or interest.

67The applicant’s request for costs is dismissed.

Footnotes

1. 1Heath v. Economical, 2009 ONCA 391, at paragraph 50.
2. 2Applicant’s Brief, p. 266-267.
3. 3Ibid, p. 611.
4. 4Respondent's Brief, p. 378.
5. 5Ibid, p. 844.
6. 6Ibid.
7. 7Respondent’s Brief, p.715.
8. 8Applicant’s Brief, p. 654.
9. 9Ibid, p. 657.
10. 10Ibid.
11. 11Applicant’s Brief, Tab 41, p. 12.
12. 12Ibid, Tab 59.
13. 13Applicant’s Brief, Tab 41, p. 10.
14. 14Ibid, Tab 43, p.13.
15. 15Ibid, Tab 26, p. 669.
16. 16Ibid, p. 664.
17. 17Ibid, p. 668.
18. 18Respondent’s Brief, p. 838.
19. 19Ibid.
20. 20FSCO A98-000670.
21. 21See Applicant’s Brief, Tab 89 for issues 2 and 3, and Tab 58 for issue 5.
22. 2217-002689 and Aviva, 2018 CanLii 2311, para 15.
23. 23Respondent’s Brief, p. 840 and 844.
24. 24M.M. v. Aviva, 2021 CanLII 18923 (ON LAT) (reconsideration decision), at para 18.