Al Dhoun v. Aviva Insurance Company, 2023 CanLII 9248

Citation: Al Dhoun v. Aviva Insurance Company, 2023 ONLAT 20-009309/AABS

Licence Appeal Tribunal File Number: 20-009309/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:

Mahmoud Al Dhoun

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Mary Shemon, Counsel

For the Respondent: Joseph Kositsky, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on August 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule, - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in this written hearing are²:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 15, 2017 to August 18, 2019?

ii. Is the applicant entitled to $2,749.01 for a neurological assessment, recommended by Unison Medical Assessments in a treatment plan (“OCF-18”) dated November 9, 2017?

iii. Is the applicant entitled to $3,615.69 for psychological services, recommended by Unison Medical Assessments in an OCF-18 dated November 9, 2018? (Resolved)

iv. Is the applicant entitled to $2,001.00 for a physiatry assessment, recommended by Unison Medical Assessments in an OCF-18 dated July 3, 2018? (Resolved)

v. Is the applicant entitled to $1,997.92 for a psychological assessment, recommended by Unison Medical Assessments in an OCF-18 dated December 20, 2017? (Resolved)

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit for the period in dispute;

ii. The applicant is not entitled to the treatment plan for a neurological assessment;

iii. The applicant is entitled to interest in accordance with s.51 of the Schedule for any incurred and unpaid goods and services set out in the previously approved treatment plans listed in paras 2(iii)-(v) above.

NON-EARNER BENEFIT

4The test for entitlement to a non-earner benefit (“NEB”) is for the applicant to show that he sustained an impairment as a result of the accident and that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident and does not qualify for an income replacement benefit.³ Section 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 that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

5In the seminal case of Heath v. Economical Mutual Insurance Company,⁴ the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁵

6The evidence submitted by the applicant with respect to his pre-accident activities and how his accident-related impairments have led to a complete inability to carry on with them post-accident do not, in my view meet the stringent requirements of the NEB test. Based on the totality of evidence, I find that the applicant is not entitled to NEBs for the period in dispute, as he has not demonstrated a complete inability to carry on a normal life as a result of the accident.

7To support his claim for NEBs, the applicant relies on a Disability Certificate (“OCF-3”) dated September 15, 2017 prepared by Rudi S. L. Chan, chiropractor. Dr. Chan noted that the applicant suffered from a complete inability to carry on a normal life, a substantial inability to engage in caregiving activities, and a substantial inability to perform housekeeping and home maintenance services that he had performed pre-accident. The listed injuries included: headaches, sprain and strain of joints and ligaments of neck, thoracic and lumbar spine, radiculopathy, and sleep and anxiety disorders.⁶ Dr. Chan indicated that the anticipated duration of the applicant’s limitations due to his injuries was 9-12 weeks.

8The applicant further relies upon the clinical notes and records (“CNRs”) of his family physician Dr. Salah Eddin Ali, to establish his ongoing back pain, radiating down to his lower exterminates, his neck pain and anxiety⁷. The applicant submits that an MRI of his lumbar spine dated April 13, 2018 is evidence of nerve compression and disc herniation.⁸ With respect to his chronic pain, the applicant was referred by Dr. Ali to Dr. Harmanjit Sandhu, who diagnosed the applicant with post-traumatic pain syndrome and post-traumatic stress disorder on October 15, 2018⁹, and Dr. Markijan Kramarchuk, who in September 2019 recommended nerve block injections for pain management, in addition to discussing physiotherapy, rehabilitation and manual therapy¹⁰.

9As a result of these impairments, the applicant submits that he is unable to participate in his pre-accident activities of attending daily ESL classes, taking the children to school, driving his children to their weekly appointments and extra-curricular activities, assisting his wife with household tasks like snow shovelling, mowing the lawn, taking out the garbage, cleaning and meal preparation, and leisure activities like swimming and fishing.¹¹

10In response, the respondent argues that the applicant does not suffer a complete inability to carry on a normal life. It submits that the applicant self-reported to its Insurer’s Examinations (“IE”) assessors that he was still able to engage in a number of activities post-accident, including: attending ESL classes, picking up his children from school, completing personal care tasks, driving and spending leisure time with the family. The respondent further relies upon the IEs conducted by Dr. Yuri Marchuk, physiatrist, Dr. Amena Syed, psychologist, and Vinita Tandon, occupational therapist (“OT”), who all found that the applicant did not suffer from a complete inability to carry on a normal life.

11Based on the totality of medical evidence, I find that the applicant has not adduced sufficient evidence that he is unable to participate in substantially all of his pre-accident activities.

12The applicant does not direct me to any medical opinion from one of his treating physicians that he suffers a complete inability to carry on a normal life. Although the OCF-3 by Dr. Chan, chiropractor, noted such an inability, the expected duration of the applicant’s impairments was identified as being only 9-12 weeks. Further, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Although the applicant’s family physician, and the specialists he saw for ongoing pain, corroborated the applicant’s reports of ongoing back pain, the applicant has not submitted that these physicians have similarly found that he has sustained a complete inability to lead a normal life.

13The Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.¹² The applicant has provided limited submissions in this regard, simply stating that pre-accident he had attended ESL classes from Monday to Friday and drove his children to their appointments and extracurricular appointments “on a weekly basis”.¹³ No additional details are provided as to the remaining listed activities.

14Further, the applicant has not offered a detailed comparison of how much value he placed on each pre-accident activity, as required by Heath. While all of the applicant’s pre-accident activities must be considered, greater weight may be placed on activities that were more important to the applicant’s pre-accident life. Other than one sentence in his submissions stating that ESL classes “came second to caring for his children and family”¹⁴ the applicant has not placed values on his listed activities.

15With respect to the resumption of his pre-accident activities, the applicant submits that he was unable to attend his ESL classes for “months” after the accident, and that when he returned, his attendance was “sporadic and he encountered problems with concentration, memory, irritability and anger”.¹⁵ However, the applicant has not provided any objective evidence of this, such as attendance records pre- and post-accident, or assignment or grade marks indicating his marks declined post-accident. Without such evidence, I am left with only the submissions and self-reports of the applicant. However, it is well-settled that submissions alone are not evidence. Moreover, I note the respondent’s submissions that the applicant reported to a number of IE assessors that he had returned to his daily ESL classes post-accident and did not report any difficulties with attendance or concentration.¹⁶ As such, I find that the applicant has not adduced sufficient evidence that he has been practically prevented from attending at his pre-accident activity of daily ESL classes.

16With respect to household tasks, the applicant has consistently reported to a number of assessors that pre-accident, his responsibilities included: snow shovelling, mowing the lawn, taking out the garbage and that post-accident he was unable to do these activities. As such, I accept that the applicant has led sufficient evidence that he has been substantially impacted in completing these tasks post-accident.

17However, with respect to the additional household chores mentioned in the applicant’s submissions, namely, cleaning and meal preparation, I find that the applicant has not led sufficient evidence to show that he was responsible for these tasks, pre-accident. The applicant reported that to Ms. Tandon, OT, that pre-accident his wife had been the primary caregiver, and that his wife and sixteen year old daughter had cooked, cleaned and done the laundry and continued to do so post-accident.¹⁷ When listing his pre-accident household responsibilities, a number of assessors have noted shovelling, mowing and garbage removal, but cleaning and meal preparation has not been listed as being the applicant’s responsibility. As such, I find that the applicant has not led sufficient evidence that he was responsible for cleaning and meal preparation pre-accident.

18In addition, the applicant has failed to establish that he was unable to continue with non-strenuous household tasks post-accident. The applicant reported to Dr. Syed that while he was unable to do the strenuous tasks of snow shovelling, lawn mowing and garbage he was able to do “simple things”¹⁸. The applicant also reported to his family physician Dr. Ali on May 25, 2018, when discussing his body aches and pain, that the pain medication helped and that “without it cant perform his daily chores”.¹⁹ Therefore, from the evidence it appears that the applicant was still completing daily chores, albeit at times with medication.

19Finally, the applicant has not provided any detailed submissions as to the frequency and duration of such household tasks, either pre or post-accident. As such, I find that the applicant has not adduced sufficient evidence to establish that he has been continuously prevented in engaging in substantially all of these home maintenance tasks.

20The applicant also submits that post-accident, he was unable to resume taking his children to school or to their weekly appointments and extra-curricular activities, submitting that when he switched to walking the children to school rather than driving, he was still limited due to pain²⁰. However, the medical records indicate that in two separate reports the applicant noted that walking did not cause his back pain. In October 2018, when being assessed for chronic pain, the applicant reported to Dr. Sandhu, that he did not have walking intolerance and that “walking reduces his back pain severity”²¹. In addition, in a September 11, 2019 CNR entry, Dr. Ali noted, “only time pain when stands straight and sits for long time no complaints when walks, plays, runs, bends or twists”.²²

21With respect to extra-curriculars and appointments, the applicant did not provide any detailed submissions as to the frequency and time commitments of the appointments and extra-curricular activities he was responsible for pre-accident and how this has changed post-accident. Moreover, although the applicant submits that he cannot drive long distances²³, he does not direct me to any evidence that the children’s extra-curriculars or appointments were long distances from home. In addition, the applicant reported to both Dr. Syed and Ms. Tandon that he continued driving when needed²⁴ and that he continued to help with transporting the children.²⁵

22With respect to leisure and social activities, the applicant submits that he can no longer swim and go fishing due to pain. However, the applicant also reported to IE assessors that his leisure activities included spending time with his children, friends and watching TV. The applicant reported that he continued with these activities post-accident.²⁶

23The applicant submits that even if he participated in a number of his pre-accident activities post-accident, this return was “not without pain”²⁷ and as such, he cannot be said to be truly engaging in the activity. However, the onus is on the applicant to establish that the degree of pain he experienced when completing these tasks practically prevented him from performing those activities. The applicant relies on the statements in his submissions²⁸, but submissions are not evidence. Stating that he participated in activities, with pain, is not enough to meet the requirements of the NEB test.

24The respondent’s IE assessors found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. In the Physiatry IE, Dr. Marchuk found that upon a physical exam, there was minimal loss of range of motion to the cervical spine, muscle strength was good and there were no signs of complex injuries sustained from the accident.²⁹ After conducting a psychological IE, Dr. Syed found that the applicant was not suffering from any accident-related psychological impairment that would warrant a diagnosis as per the DSM-V.³⁰ Ms. Tandon, OT also concluded that the applicant tested in the normal range for active range of motion and that he demonstrated fair activity tolerances during the evaluation.³¹ All three assessors subsequently completed addenda reports indicating that the additional documentation reviewed did not change their initial conclusions.

25The applicant submits that the respondent’s IE assessments should not be relied upon, as the respective assessors did not review the applicant’s complete medical file.³² The applicant asserts that diagnostic MRI imagining conducted in April 2018 was not reviewed by the assessors prior to conducting their in-person examinations. However, I note that these results were reviewed by all of the assessors and subsequent addenda reports were provided, confirming that their opinions were unchanged. Although the applicant asserts that such addenda should not hold any weight as the assessors did not re-assess the applicant, I note that there is no requirement that an insurer physically re-assess an applicant after new diagnostic imaging was received. Particularly in this case, where there was not a substantial gap between the date of the initial IE assessment and the new imaging.

26The applicant further argues that the IE assessments should be discounted because the assessors did not have the applicant’s pre-accident medical file to review. The applicant cites the Tribunal decision I.D.C. v. Aviva Insurance Canada³³, as support for his argument that the conclusions of an IE assessor are weakened when the assessor does not have a complete historical picture of the applicant’s medical history and so, cannot properly analyze the claimant’s pre- and post-accident function with respect to NEBs. I find that I.D.C. is distinguishable from the present case, and as such, is not persuasive on this issue. In I.D.C., the applicant claimed to have a number of pre-existing injuries stemming from a previous motor vehicle accident, which she claimed were exacerbated by the subject accident. Therefore, her pre-accident level of functioning was at issue. In the matter at hand, the applicant has consistently stated to assessors that he had not been in any earlier accidents, and did not raise any pre-accident impairments. As such, unlike in I.D.C., his pre-accident level of functioning was not in question.

27The onus is on the applicant to establish entitlement to NEBs. I do not find that he has met his onus to prove that he suffers from a complete inability to carry on a normal life as a result of the accident. As such, I find that the applicant is not entitled to NEBs for the period in dispute.

OCF-18 in the Amount of $2,749.01 for a Neurological Assessment

28The applicant submitted an OCF-18 dated November 9, 2017, for a neurological assessment. The respondent raises the issue that the applicant is statute-barred from pursuing his claim for this treatment plan, as the applicant’s Application to the Tribunal regarding this denial of benefit occurred after the two-year limitation period set out by s. 56 of the Schedule.

29The respondent submits its Explanation of Benefits (“EOB”) dated February 7, 2018, which denied the proposed neurological assessment. As the applicant’s Application to the Tribunal is dated August 10, 2020, I find that the Application was filed outside of the two-year limitation period provided for in s. 56 of the Schedule. The respondent concedes that from March 16, 2020 until September 24, 2020, limitation periods were suspended due to the COVID-19 pandemic.³⁴ However, even taking into account this suspension, the applicant still missed the two-year deadline by more than a month. The applicant has not made any argument or filed any evidence to the contrary.

30The Tribunal has discretion to extend the two-year limitation period, pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999³⁵. Section 7 of LAT Act gives the Tribunal power to extend the time, despite any limitation of time fixed by or under any Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief. In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal generally weighs the following four factors in order to determine whether the justice of the case requires that the extension be granted:

(i) the existence of a bona fide intention to appeal within the appeal period;

(ii) the length of the delay;

(iii) prejudice to the other party; and,

(iv) the merits of the appeal.³⁶

31The applicant has not provided any submissions or evidence on the issue of his failure to adhere to the two-year limitation period for this treatment plan, or the factors to be considered in granting an extension. No explanation is provided for the delay and the applicant has provided no submissions or evidence indicating that he had a bona fide intention to appeal the denial within the appeal period. In his submissions, the applicant has not requested that I exercise my discretion under s. 7 to grant an extension.

32The onus is on the applicant to satisfy me in light of the four factors as set out above that the justice of the case warrants an extension of the limitation period. In the absence of any such submissions, or evidence, I am not prepared to use my discretion pursuant to s. 7 of the LAT Act and extend the limitation period in this matter. As such, I find that the applicant is statute-barred from proceeding with his claim for the treatment plan for the neurological assessment.

INTEREST

33As I have found that the applicant is not entitled to NEBs or the treatment plan for the neurological assessment, I find that no interest is payable on these issues in dispute. However, the applicant maintains his claim for interest in accordance with s. 51 of the Schedule, on the treatment plans that were previously in dispute between the parties, but were approved immediately prior to this written hearing.

34The applicant submits email confirmation that the OCF-18 for $3,615.69 for psychological services, dated November 9, 2018 and the OCF-18 for $2,001.00 for a physiatry assessment, dated July 3, 2018, were both approved on December 17, 2021 a month before the applicant’s initial written submissions were filed.³⁷ The OCF-18 for $1,997.92 for a psychological assessment, was approved on January 19, 2022, after the filing of the applicant’s initial submissions.³⁸

35The applicant has submitted that the OCF-18 for $1,997.92 for a psychological assessment has been incurred³⁹, but has not indicated whether the remaining two treatment plans have been incurred. Nor did the applicant request that I “deem” them incurred under s. 3(8) of the Schedule.

36With respect to the issue of interest on these approved treatment plans, the Schedule is clear that interest applies when there is an overdue payment of a benefit and s. 51 does not allow an insurer to escape the payment of interest by approving a treatment plan prior to the hearing of a matter. Therefore, I find that the applicant is entitled to interest in accordance with s. 51 of the Schedule for the incurred and unpaid goods and services set out in the OCF-18 for $1,997.92 for a psychological assessment. With respect to the OCF-18 for $3,615.69 for psychological services and the OCF-18 for $2,001.00 for a physiatry assessment, as the applicant has not provided submissions on whether they have been incurred, I find that the applicant would only be entitled to interest in accordance with s. 51 of the Schedule once the goods and services set out in these treatment plans are incurred and have become overdue.

ORDER

37For the reasons stated above, I find that:

i. The applicant is not entitled to a non-earner benefit for the period in dispute;

ii. The applicant is not entitled to the treatment plan for a neurological assessment;

iii. The applicant is entitled to interest in accordance with s.51 of the Schedule for any incurred and unpaid goods and services set out in the following previously approved treatment plans:

1. OCF-18 dated November 9, 2018 for psychological services

2. OCF-18 dated December 20, 2017 for psychological assessment

3. OCF-18 dated July 3, 2018 for physiatry assessment.

Released: February 6, 2023

__________________________

Ulana Pahuta

Adjudicator

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2The applicant confirmed in his written submissions that the treatment plans listed in paras 2(iii)–(v) above were resolved, as the respondent had approved the three treatment plans in full. Therefore, the applicant effectively withdrew issues 2(iii)-(v) as issues in dispute, although he submitted that interest should still be payable on these treatment plans. The issue of interest on the resolved treatment plans will be considered in the section on Interest, discussed below.
3. 3Section 12(1) of the Schedule.
4. 42009 ONCA 391 (“Heath”).
5. 5Ibid at para 50.
6. 6Applicant’s Book of Documents, Tab 1 – OCF-18 dated September 15, 2017
7. 7Applicant’s Submissions at para 6, and Applicant’s Book of Documents, Tab 2 – CNRs of Dr. Ali
8. 8Applicant’s Book of Documents, Tab 3 – MRI of Lumbar Spine dated April 13, 2018
9. 9Applicant’s Book of Documents, Tab 4 – Report of Dr. Sandhu dated October 15, 2018
10. 10Applicant’s Book of Documents, Tab 5 – Report of Fr. Kramarchuk, dated September 17, 2019
11. 11Applicant’s Submissions, at para 17.
12. 1216-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
13. 13Applicant’s Submissions at para 16-17.
14. 14Applicant’s Submissions at para 16.
15. 15Applicant’s Submissions at para 19.
16. 16Respondent’s Book of Authorities, Tab 3 – Occupational Therapy Assessment dated March 21, 2018 at p.2; Tab 8 – Neurology Assessment dated January 24, 2018 at p. 3
17. 17Respondent’s Book of Authorities, Tab 3 – OT Assessment dated March 21, 2018 at pgs. 5-6
18. 18Respondent’s Book of Authorities, Tab 2 - Psychological Assessment dated March 21, 2018 at p.19
19. 19Applicant’s Book of Documents, Tab 2 – CNRs of Dr. Ali, entry dated May 25, 2018
20. 20Applicant’s Submissions at para 20
21. 21Applicant’s Book of Documents, Tab 4 – Report of Dr. Sandhu dated October 15, 2018
22. 22Applicant’s Book of Documents, Tab D – CNR entry dated September 11, 2019
23. 23Applicant’s Submissions at para 18.
24. 24Respondent’s Book of Authorities, Tab 2 - Psychological Assessment dated March 21, 2018 at p.21
25. 25Respondent’s Book of Authorities, Tab 3 – OT Assessment dated March 21, 2018 at pg. 17
26. 26Respondent’s Book of Authorities, Tab 1 Physiatry Assessment dated March 21, 2018 at p.8, Tab 2 Psychological Assessment dated March 21, 2018 at p.19, Tab 3 - OT Assessment dated March 21, 2018 at pg. 2, 7 and 10
27. 27Applicant’s Reply Submissions at para 11.
28. 28Applicant’s Reply Submissions, at para 12.
29. 29Respondent’s Book of Authorities, Tab 3 –Physiatry Assessment dated March 21, 2018 at pg. 11
30. 30Respondent’s Book of Authorities, Tab 2 Psychological Assessment dated March 21, 2018 at p. 28
31. 31Respondent’s Book of Authorities, Tab 3 – OT Assessment dated March 21, 2018 at pg.
32. 32Applicant’s Submissions at para 26.
33. 33I.D.C. v. Aviva Insurance Canada, 2019 CanLII 101540 (ON LAT)
34. 34O. Reg. 73/20, a regulation enacted under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.
35. 35S.O. 1999, c. 12, Sched. G (the "LAT Act").
36. 3616-002336 v. North Blenheim Mutual Insurance Company, 2019 CanLII 58193 (ON LAT) at para. 13.
37. 37Applicant’s Reply Submissions, Tab 2 – Email correspondence dated December 17, 2021
38. 38Applicant’s Reply Submissions, Tab 1 – Email correspondence dated January 19, 2022
39. 39Applicant’s Submissions at para 33.