Citation: Gautam v. Aviva Insurance Company of Canada, 2023 ONLAT 21-011626/AABS

Licence Appeal Tribunal File Number: 21-011626/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:

Bharti Gautam

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Kevin Lundy

APPEARANCES:

For the Applicant:

Bharti Gautam, Applicant Vicki Edgar, Counsel Alexa Duggan, Associate Counsel

For the Respondent:

Lynda Mantha, Representative

Kevin Griffiths, Counsel

Court Reporter:

Rachel Thompson

HEARD: by Videoconference:

August 29-31, 2023

OVERVIEW

1Bharti Gautam (the ‘applicant’) was involved in an automobile accident on July 22, 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 Aviva Insurance Company of Canada (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

2On October 27, 2014, the applicant was involved in a prior accident that resulted in significant symptoms of pain and anxiety, most of which persisted to the date of the subject accident. With respect to the subject accident, on July 22, 2019, the applicant’s vehicle was rear-ended at a red light. Although the applicant testified that the 2019 accident worsened her pre-existing injuries from the prior accident and delayed her response to treatment, the respondent takes the position that there is insufficient evidence that any of the applicant’s present symptoms can be causally linked solely to the 2019 accident.

ISSUES

3The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (the ‘MIG’) limit? At the hearing, the parties agreed that the MIG limit has been exhausted.

2. Is the applicant entitled to a non-earner benefit (‘NEB’) in the amount of $185.00 per week from December 19, 2019 to July 22, 2021?

3. Is the applicant entitled to the treatment plans/OCF-18 (‘plans’), proposed by Novus Rehabilitation Limited as follows:

(i) $1,781.25 for psychological services dated October 25, 2019;

(ii) $1,400.00 for occupational therapy services dated September 17, 2019;

(iii) $226.53 ($1,311.73 less $1,085.20 approved) for physiotherapy services dated February 13, 2020; and

(iv) $3,783.46 for home modifications and home devices dated February 14, 2020?

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

4At the start of the hearing, the applicant withdrew her claim for attendant care benefits.

RESULT

5I find that:

a. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. The applicant is not entitled to a non-earner benefit;

c. As the applicant’s injuries fall under the MIG, she is not entitled to any of the proposed treatment plans.

d. As no payments are overdue, no interest is owing.

6The application is therefore dismissed.

PROCEDURAL ISSUES

7The applicant relied upon an occupational therapy report written by Michelle McArthur (‘M.M.’) and dated October 25, 2019. This was based upon an OT assessment conducted by both M.M. and her supervising OT, Kelly Smale (‘K.S.’), at the applicant’s residence on October 7, 2019. Both M.M. and K.S. signed page 11 of the report and this complete copy was filed with the Tribunal. However, an incomplete version of the same report was disclosed to the respondent that lacked this last signature page. A complete report was transmitted to the respondent’s counsel during the hearing. There was no indication that the contents of the report otherwise differed.

ANALYSIS

The July 2019 Accident

8On July 22, 2019, the applicant’s husband was driving their car and had stopped at a red light when the car behind them failed to stop and struck their vehicle. The applicant testified that the entire car shook back and forth and she became “tensed,” immediately experiencing pain all over her body as she braced against the impact. Because she was wearing her seatbelt, she did not strike any part of her body against the interior of the vehicle and she did not lose consciousness. She described pain in her shoulder, back, hip, legs and the back of her neck as beginning “all right away” and “aggressive.”

9The applicant was able to exit the vehicle without assistance and walked to the other vehicle to speak with the driver. Neither she nor the other driver contacted emergency services or the police. Despite over $4,000.00 damage to her vehicle, it remained in a driveable condition and the applicant was able to drive it to the collision reporting centre. She and her husband then rented a car and went home. She described the 2019 accident as “more forceful” than the earlier accident and noted that the damage to her vehicle was also more costly. She did not attend at the hospital on the day of the accident but visited her family doctor, Dr. Monika Sharma, the following day. She recalled that her doctor recommended physiotherapy and x-rays. She acknowledged that the x-rays confirmed that she had not sustained any fractures from the accident. She attended both physiotherapy and massage and found both helpful.

10Her husband was also injured in the accident and immediately reported pain and nausea. Although the extent of his injuries were not detailed at the hearing, following the 2019 accident, he was unable to help the applicant with household tasks, compelling her to assume a number of caregiver duties in response to his decreased level of functionality.

The Minor Injury Guideline

11I find that the applicant has failed to establish on a balance of probabilities that her injuries fall outside of the MIG and that they cannot be treated within its confines.

12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

13The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under subsection 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

14The respondent highlighted a striking similarity between the applicant’s reported symptoms from both collisions and the apparent absence of any one issue that could be attributed solely to the subject accident. For the most part, the 2019 accident caused the same symptoms from the earlier accident to persist and, in some cases, worsen. For instance, following the 2014 accident, the applicant experienced headaches, pain in her shoulders, upper back and the back of her neck. Although she described the pain from 2014 as intermittent prior to the second accident, following that collision to the date of the present hearing, the pain in the same areas remained constant. While she experienced shoulder pain from the 2014 accident, the pain in her right shoulder worsened significantly after the second accident. She also experienced depression over the return of the pain symptoms following the 2019 accident and explained that she had no one with whom she could speak.

15Regarding differences between her injuries from the two accidents, the applicant was not always a reliable historian. In particular, she testified that following the 2019 accident, she experienced occasional dizziness and strange sensations similar to disorientation that she attributed to a possible concussion. She initially testified that prior to the 2019 accident, she had not experienced dizziness and described this symptom as unique to her injuries from the second accident. She also advised K.S. that she did not experience dizziness or loss of balance before the 2019 accident but subsequently endured these symptoms roughly twice per month from the second accident to the date of the hearing. She also testified that she was having difficulties focussing, remembering things and concentrating now. This has interfered with her ability to engage in yoga and meditation.

16However, on Marsh 25, 2015 and January 21, 2016, the applicant advised Dr. Dana Menard, a clinical psychologist who assessed her following the 2014 accident, that she experienced severe daily headaches, dizziness, memory problems, sensitivity to sound and light, ringing in her ears, fatigue, irritability and sleep and concentration difficulties. During her first meeting on October 6, 2016 with physiatrist Dr. Robert Teasell, the applicant expressed concerns that she may have received a concussion from the 2014 accident based upon her ongoing loss of balance and dizziness.

17Under cross-examination, the applicant acknowledged that she experienced dizziness following the 2014 accident but emphasized that it worsened after the second accident. Similarly, K.S. acknowledged that the applicant reported that her dizziness and sleep issues had worsened following the 2019 accident but had been present after the prior collision. The applicant also agreed that she had some difficulty in recalling which problems she had before versus after the subject accident. She also described very similar issues of lack of motivation and withdrawal from social settings to Dr. Menard before and after the 2019 accident.

18At the hearing, the applicant acknowledged that she still experienced symptoms from her injuries following the 2014 accident but testified that she believed that she was getting better and was trying to return to a more normal life. However, in her reports to several health practitioners during the years following the first accident, she described a very different scenario in which her pain had not improved and had in some respects worsened.

19For instance, during a physiatry treatment for Custom Rehab & Assessments Canada Ltd. in relation to the 2014 accident, on September 25, 2015, the applicant advised psychiatrist Dr. Laurence Jerome, that her pain had gradually become increasingly worse and that she was very emotionally distressed. At that time, she was only taking Tylenol 3s for the pain as contrasted with the more powerful opiates taken later.

20Clinical psychologist, Dr. Nicole Reist, treated the applicant in July 2016 following the 2014 accident. The applicant reported significant pain constant throughout her entire waking day, as well as depression and anxiety that impacted her daily living and self-worth. She described much the same level of pain and difficulties with her daily routine with the same lack of improvement two months later to orthopaedic surgeon, Dr. Gilbert Yee, at an assessment on September 7, 2016.

21Almost three years after the first accident and one year of counselling, on May 11, 2017, the applicant reported minimal improvement to Dr. Reist. Although she had incorporated pacing strategies into her housekeeping routine, she still reported serious psychological issues including problems with concentration, fatigue, low interest and social withdrawal.

22On October 17, 2017, she reported a similar diminishing social network, sleep issues, fatigue and discomfort reading and generating conversations to Amy Tremblay-Prevost, a speech language pathologist. She agreed that she told Ms. Tremblay-Prevost that prior to the 2014 accident, she enjoyed walking her dog, shopping and going to restaurants but mostly avoided these activities after that accident. As she was only getting two to four hours of sleep, she reported always feeling fatigued.

23When she applied for CPP Disability Benefits on July 9, 2017, the applicant reported that she had stopped working on July 15, 2015 due to injuries from the 2014 accident and that she had no plans at that time to return to work. At the hearing, she explained that after the 2019 accident, she considered returning to work if the treatments proved helpful. On the related questionnaire to Service Canada, she listed the reason for not returning to work as “experiencing chronic pain in neck, both shoulders, lower back, right hip, left knee and right heel; left knee bone spur.” She also advised Service Canada that “all activities stopped” following the 2014 accident and that she could only sit or stand for fifteen minutes, walk a maximum of approximately five to seven minutes on even ground, the equivalent of two blocks, grip, bend, attend to personal needs, carry more than five to seven pounds, reach above her head and perform more than light household chores or prepare more than simple meals. She explained that respect to meal preparation, she requires breaks and the process takes longer.

24On October 7, 2019, K.S. and M.M. attended at the applicant’s residence and conducted an occupation therapy assessment to assess her functional status and recommend appropriate treatment. They collected information on the applicant’s past medical history, her symptoms at the time of the assessment, her pre-existing symptoms and her activities of daily living. They also assessed her range of motion, transfers and tolerances. K.S. testified that she attempted to parse the effects of the 2019 accident from her pre-existing injuries and agreed that this inquiry was entirely through the applicant’s self-reporting. K.S. did not have access to the applicant’s accident benefits files, her CPP file or any other records predating the 2019 accident.

25The applicant reported to K.S. and M.M. that her pain symptoms from the 2014 accident had increased in frequency and intensity following the 2019 accident. She described the intensity of her neck pain prior to the 2019 accident as 6 out of 10 on the numeric pain scale (with 0 being no pain at all and 10 being the worst pain imaginable). Since the July 2019 accident, she reported her neck pain as constant and having increased in severity. She rated her pain as 7 to 8 out of 10 and described it as a tension through the back of her neck and between her shoulder blades. She reported that increased movement aggravates her symptoms while heat and medication help to reduce her them. At the hearing, the applicant assigned her neck pain a rating of 6 to 7 out of 10 and stated that it now “comes and goes.”

26The applicant reported to K.S. and M.M. that prior to the 2019 accident, she experienced occasional right shoulder pain approximately two to three times per week and rated her pain as 5 out of 10. She described the pain in the same area as a constant ache at 6 out of 10 that increased with activity and stress and reduced with rest. At the hearing, she described the pain as 7 out of 10 and constant. K.S. agreed that the applicant described the same pain issues and range of motion for both shoulders with the exception of internal rotational pain of her right shoulder. K.S. testified that the applicant’s range of motion was within functional limitations for extension and internal rotation, but reduced for flexion and abduction.

27The applicant also recalled an occupational therapy assessment at her home on February 11, 2021, conducted by occupational therapist, Daniel Horban. During that assessment, she advised Mr. Hoban that she experienced pain all over her body and that she suffered from constant headaches, sleep disturbances, fatigue, low mood, depression and difficulties with memory, attention and concentration, all of which she attributed to the 2019 accident as believed that she had recovered from the 2014 accident. At the hearing, she altered this evidence to explain that while these issues had not resolved, she had been focussing on improving her situation when the 2019 accident occurred and the symptoms severely worsened.

28Dr. Sharma referred the applicant to Dr. Teasell in 2016 with respect to managing her chronic pain. Dr. Teasell has treated the applicant since October 6, 2016, also the date of his first written documentation on her condition. During that first interview, the applicant described her chief complaint as “pain all over with focus more on headaches, back of the neck, shoulders, arms, fingers, hand, low back, right and left hips, left knee and particularly the right heel.” Following the meeting, Dr. Teasell wrote that she “had tremendous responsibilities both at work and at home because of challenges within the family” and “suddenly was rendered significantly disabled without strong supportive system within the family structure.” He also documented that “she is likely not going to get better at this point” and that “it is likely that her injuries are permanent so she has reached near maximal medical improvement.” In response to her reports of daily headaches and constant pain, Dr. Teasell prescribed four tablets of Percocet daily.

29At the hearing, Dr. Teasell explained that because most patients recover within two years of injury, he could be confident with the above assessment as two years had passed since the 2014 accident and the applicant’s physical injuries had not appreciably improved.

30Dr. Teasell testified that as a consequence of the 2014 accident, the applicant was dealing with a number of issues related to chronic pain. He determined that she was experiencing chronic neck pain (WAD II) and may also have a C5-6 facet joint injury, both common in rear end collisions. He also concluded that she had mechanical lower back pain, cervical headaches and periscapular myofascial pain in her shoulders and upper thorax, as well as pain in her upper thighs and knees. He also found that she had adjustment disorder in that she was struggling to cope with her new reality and reduced functionality following the accident, characterized by high levels of anxiety, depression and irritability. The latter was accentuated by tension at home and her financial issues as she was not working at the time. While not an expert in personality types, from a psychiatric perspective, Dr. Teasell described the applicant as falling within the group of hardworking and intense personalities who struggle with chronic pain more than others. He noted that with counselling, her coping and adjustment disorder could change or resolve over a longer period.

31Dr. Teasell explained that he regarded a possible link between degenerative disc disease with respect to applicant’s possible C5-6 facet injury and chronic pain as rather weak. However, he stated that the neck pain observed was a direct result of a whiplash injury, independent of whether she has degenerative disc disease or not. When he first met with the applicant, she had typical limitations for neck and back pain, specifically difficulty with heavy lifting, pushing or pulling, overhead work, bending, twisting or maintaining her posture for an extended period. Before the 2019 accident, he believed that the applicant could possibly work at her small family business as the hours and attendance requirements were flexible. Otherwise, she was at a competitive work disadvantage for a feasible pathway to return to a traditional employment environment given her need for significant work flexibility. In any event, he testified that following the second accident, she would not be able to engage in any form of employment.

32On December 20, 2016, Dr. Teasell noted that the applicant remained caught in a vicious cycle of stress and physical pain as she continued to argue with her husband over his high expectations of her functionality and received minimal assistance from her sons. This remained the situation on July 11, 2017 when she advised him that she believed her worst pain was still in her neck and shoulders and described an unchanged portrait of ongoing stress at home. He believed that if her family could provide her with more support and she was under less stress, that would help her to better cope. This would in turn assist in reducing her pain.

33When the applicant saw Dr. Teasell again on October 10, 2017, she reported that the pain had not changed significantly and her headaches remained constant. She also reported that she no longer felt active and had lost her independence. At that time, she was taking four Percocet tablets and two Hydromorphone pills daily, as well as Tylenol 3s with codeine multiple times each day. She continued to take all of these medications to the date of the second accident and reported light sensitivity, double vision, blurred vision, auditory sensitivity, pain moving her eyes and discomfort while reading, prompting a referral for a functional oculo-visual assessment with Dr. M. Suwala on September 10, 2017. By April 23, 2019, the applicant said nothing to indicate that her pain had improved, but Dr. Teasell was then focussed on her psychological issues and re-prescribed her medication which still included Hydromorphone and Percocet.

34Although Dr. Teasell observed that the applicant had learned how to manage her pain better by April 23, 2019 through pacing and other coping strategies, he did not see any actual change in her physical condition. Her improved coping had a positive effect on her adjustment disorder leading to less stress and depression because she had learned not to push herself as hard with respect to housework and other obligations. However, she continued to perform most of the housework because her husband was disabled and her sons did not help.

35Following her 2019 accident, Dr. Teasell saw the applicant again on September 20, 2019 and she reported headaches, shoulder and hip pain, increased neck and back pain, as well as an understandable driving anxiety as this was her second accident. The applicant was very distraught by this significant setback. Later, Dr. Teasell documented that she appeared more irritable and he diagnosed her with fibromyalgia as her muscle pain appeared to be more generalized than previously observed. However, it is worth noting that his notes from that visit do not specify a diagnosis. At the hearing, he testified that his diagnosis was the applicant’s increased pain and that she still conformed with his definition of fibromyalgia as generalized pain although her actual symptoms could fluctuate from day to day. He also explained that documenting the applicant’s symptoms as fibromyalgia was generally intended to communicate a useful shorthand for her condition to Dr. Sharma.

36Other than increased pain, Dr. Teasell did not offer a diagnosis in his December 10, 2019 report. While he did mention fibromyalgia for the first time in print within this report, he did not link it causally to the 2019 accident. It is also worth noting that he did not diagnose her with fibromyalgia before 2019 although she had complained of pain in the same areas in 2016 plus additional areas and had experienced these same symptoms for two years by the time he first saw her. There was also no evidence of any prior diagnosis of fibromyalgia before 2019.

37The applicant testified that the pain in her right shoulder is the worst pain that she experienced following the second accident. Dr. Teasell noted that this increased pain was more problematic and the most significant difference from her earlier symptoms. This issue was investigated by an MRI and an electromyography (EMG) which revealed small tears in her right rotator cuff. While her doctor did not recommend surgery to correct this issue, she strongly recommended physiotherapy as it may improve flexibility in her arm. Both Dr. Sharma and Dr. Teasell expressed concern for the development of adhesive capsulitis or “frozen shoulder” but agreed that she had not yet presented with this disorder.

38Dr. Teasell agreed that these tears could account for the applicant’s increased shoulder pain but given the inherent ambiguity in interpreting MRIs, he was “not entirely sure” that the tears had not been present before the 2019 accident. In addition, while there was a chance that the tears caused the pain in her right shoulder, this was not certain and he opted not to speculate on the probabilities of causation in his written reports.

39As the tears were very small and shoulder surgery carries substantial risks, Dr. Teasell testified that surgical treatment was not an option. Because the applicant was beginning to develop frozen shoulder, he encouraged her to try to move the shoulder more through physiotherapy as this would be the ideal treatment for the pain. As the objective was to increase the shoulder’s range of motion, even putting aside the ambiguity of whether the tears were the cause of the increased pain, surgery may only reduce flexibility in this area. At the time, he was under the impression that she still attended physiotherapy and was focussed on trying to reduce her rather heavy dosage of narcotics and noted her resistance to any reduction as she was not confident that she could cope without the medication.

40On December 1, 2020, the applicant informed Dr. Teasell that she was feeling worse, particular regarding the pain in her right shoulder. Dr. Teasell agreed that this represented the first time that she described a worsening pain in this area and explained that this was not unusual and may have been the subjective impression caused by improvement in other areas.

41Dr. Teasell did not treat the applicant again for fifteen months until March 2, 2021 when she reported some improvement and indicated a willingness to reduce her narcotics levels. On June 29, 2021, he recorded that although her condition had not dramatically changed, her sons were no longer in the house, thereby decreasing a substantial source of stress. During a telephone appointment with to Dr. Teasell October 26, 2021, the applicant still reported pain in her shoulder, arm, back, right hip and knee with generalized pain over her entire body. Although she attributed this pain to arthritis, Dr. Teasell noted at the hearing that this represented the applicant’s own “diagnosis” not his own. Unfortunately, the applicant’s symptoms had not improved even two years after the second accident.

42Dr. Teasell emphasized that the applicant had a lot of symptoms after the first accident and, in terms of her symptomology, was quite limited with respect to returning to her employment, which was very important to her. After the second accident, aside from the worsening in her right shoulder, Dr. Teasell determined that her pain was more generalized. Initially, he estimated her symptoms had worsened by 40% to 50% after the 2019 accident. Given her natural recovery since the second accident, he now suspected that she was now only 20% worse compared to her condition before the second accident.

43Dr. Clifford examined the applicant on December 23, 2020 and issued his report on January 8, 2021. In his physical examination of the strength in the applicant’s shoulders, Dr. Clifford initially observed sudden-give weakness at both shoulders, an example of a pain behaviour the significance of which is ambiguous. This action may occur because the subject feels pain, anticipates pain or intends to impress upon the examiner that there is an ongoing problem. In any event, after some encouragement, he repeated the strength testing and received normal results for both arms. There was no atrophy and reflexes were normal. Similarly, his examination of the applicant’s legs yielded nothing remarkable. In the musculoskeletal examination, in which he checked for range of motion in her neck, shoulders and back, movements were performed slowly and hesitantly. As with the strength testing for her shoulders, the significance of this pain behaviour is unknown.

44Dr. Clifford did not dispute the applicant’s reports of pain and loss of function or that both had worsened after the 2019 accident. Between the possibility that she has an as yet undiscovered pathology that would account for her declining tissue status and the possibility that she has had chronic pain since the 2014 accident, he testified that the latter was the more likely explanation for her ongoing symptoms.

45Because pain is a subjective complaint, like fatigue or weakness, it cannot be measured, validated or quantified. While acute pain exists for a short term, usually between six to ten weeks, chronic pain lasts longer than would be expected, often defined as longer than six months. It also may occur following even fairly minor injuries. Dr. Clifford explained that when the term “chronic pain” emerged in the 1970s and early 1980s, physicians relied upon the acute medical model, which involves taking a medical history, interpreting the complaints based upon a presumption of some sort of tissue damage, making a diagnosis and treating the injury. Dr. Clifford noted that this model works well with acute pain as the pain relates to ongoing tissue damage. While chronic pain may exist in relation to tissue damage, such as pain related to cancer, rheumatoid arthritis and other afflictions, there are other types of chronic pain including “central pain” or “central sensitization,” which does not respond to the acute medical model. In these situations, the complaints of ongoing pain do not originate in the periphery but instead originate centrally in the brain within the interactions between synapses. As with learning and memory, central pain may be changed and reversed through the proper treatment and neuroplasticity. However, he explained that central pain responds to the functional restoration model involving rehabilitation rather than the acute medical model since there is no ongoing active tissue damage.

46In the present case, Dr. Clifford concluded that the applicant sustained primarily soft tissue injuries from both accidents that spontaneously healed within the expected ten to twelve week timeframe but also developed chronic pain syndrome as a result of the 2014 accident. His assumption of soft tissue damage was based upon the mechanics of both accidents. In the 2019 accident, the applicant was facing forward and restrained by a seatbelt and supported by a head rest when she was struck from behind without warning in an impact that pushed her forward. This impact involved no torsion or twisting to her lower back or injuries to her hips or joints. The evidence of the mechanics of the 2014 accident suggests a very similar impact. As he could find nothing in his examination of the applicant or in the documents reviewed to indicate an injury other than soft tissue damage, he concluded that her physical injuries from both collisions were soft tissue WAD I or II.

47Although Dr. Clifford agreed that it was possible that the applicant’s pre-existing chronic pain could have impaired her recovery from the 2019 accident, he stressed that this was by no means a certainty. According to his theory, the applicant’s environment and her management of the pain would more likely have contributed to her lack of recovery.

48He also discounted degenerative disc disease as a factor in her lack of recovery, reasoning that this condition relates to normal aging and does not necessarily relate to lack of recovery. Significantly, Dr. Clifford could not speak to Dr. Teasell’s finding that the applicant’s shoulder had worsened because he only examined the applicant once and therefore could not assess this issue as a trend. Similarly, he stated that the finding of the tears in her rotator cuff within her right shoulder may or may not be causally related to the second accident since such tears are not uncommon in adults in their 40s and older. Conversely, a patient may have even major degenerative changes as shown in an MRI without any pain symptoms at all. Given that she was facing forward in her seat when the 2019 accident occurred, it is unlikely that the impact would have resulted in a tear to the tendon in her shoulder since no torsion was involved.

49The applicant had reported increased pain in her right shoulder and increased numbness in her hand after the 2019 collision. Again, Dr, Clifford discounted the likelihood that the tears found in the MRI was the cause of these increased symptoms since a tear would increase pain with certain manoeuvres but not numbness. In the present case, he found no obvious deformity in the applicant’s range of motion, albeit performed slowly with hesitation. He found no evidence of impingement on her range of motion or adhesive capsulitis at either shoulder.

50Dr. Clifford also found no evidence that adhesive capsulitis was developing as Dr. Teasell feared, but noted that this condition may develop at any point in time as a consequence of not moving an arm through its full range of motion. If a patient receives information that it may be harmful to move his or her shoulder, that patient may resist doing so, thereby developing adhesive capsulitis. With respect to the OT report that found a reduced range of motion in her right shoulder, he characterized this result as an example of pain behaviour since he found no clear evidence of tissue damage, atrophy, weakness or impingement, let alone any that would be attributable to the 2019 accident.

51Dr. Clifford concluded that the applicant’s injuries fell within the MIG based upon his determination that her injuries represented soft tissue damage. He acknowledged that because the applicant continued to complain of pain and dysfunction after the first accident, this was not the typical case that one would anticipate after such injuries. He testified that her pain and loss of function from the 2014 accident would not have interfered with her recovery from soft tissue injuries incurred again in 2019. While she reported pain and dysfunction in 2019, those same complaints had existed for years after the first accident and there was no reason to suspect that they would change after the second accident if there was no change in her management of them.

52To that end, rather than physiotherapy, which addresses ongoing tissue damage, Dr. Clifford recommended functional restoration that involves rehabilitation and education of the patient. For example, the applicant should exercise within the community with regular guidance from a trainer or a kinesiologist rather than in a medical facility.

53The applicant was also assessed by psychiatrist Dr. Bruce Ballon on January 21, 2021. She described the 2014 accident to Dr. Ballon as a serious event that “ruined my life.” She also advised him that she developed significant pains in her back and neck and had ongoing headaches as a result of that earlier accident. Although she went for some physical treatment, this did not resolve her pain, prompting her to stop working entirely and apply for CPP Disability Benefits. As well, she told Dr. Ballon that the ongoing pain from the 2014 accident, combined with stress from associated financial and family issues caused her to develop anxiety and depression. Psychotherapy for several months did not resolve her symptoms at all. Again, this contrasted with her evidence at the hearing that her symptoms from the 2014 accident were improving by the time of the second accident. Although she denied any recollection of discussing the earlier accident with Dr. Ballon, she ultimately could not contest making these statements. She repeatedly conceded that she could not recall details of her conversations with various doctors and assessors in the nine years since the 2014 accident.

54Dr. Ballon concluded that starting as early as 2008, the applicant had been developing psychiatric problems including substance issues and chronic pain. He stated that the intervention of a second accident could add stress to her life but emphasized that this was not a given as all patients respond differently to such an event. Given her calm reaction to the collision itself, her emotionally neutral description of the event, the nature of her physical injuries and his observations of her ambulation, he could not state that the second accident had a discernable effect on her pre-existing psychiatric conditions. Although she may have incurred some soft tissue injuries as a result of the 2019 collision, he deferred to Dr. Clifford’s assessment that these injuries resolved in a few months. He in turn concluded that these injuries would have caused no functional or clinical change to her psychiatric symptoms.

55Like Dr. Clifford, Dr. Ballon pointed to the applicant’s long term management of her symptoms as a possible cause for her lack of improvement. For instance, he expressed concern over the high levels of medication prescribed, particularly the opioids which can worsen depression and anxiety and create rebound pain syndrome, all of which could affect her psychiatric presentation over time. He found only one reference in the documents reviewed that the applicant had made any effort to eliminate these narcotics on her own and may have been unaware of Dr. Teasell’s repeated discussions with the applicant around this same period to reduce her dosage. Dr. Ballon explained that the applicant had expressed reluctance to take psychiatric medications as she did not want to become addicted. This hesitancy tends to support Dr. Teasell’s evidence that he had repeatedly cautioned the applicant regarding the dangers of her high level of medication.

56Dr. Ballon described the applicant’s injuries from the 2019 accident as the same soft tissue injuries that should have resolved within a few months of the second accident. He also could not find a link between that accident and her psychiatric symptoms observed at the time of his assessment. As he relied upon the concurrent physical assessment reports, he did not find that she had an adjustment disorder due to pain from the second accident since Dr. Clifford stated that there was no evidence of such an impairment or physical issues directly related to the 2019 accident.

57The applicant’s anxieties and phobias pre-dated the second accident and the depression and trauma symptoms like her specific physical complaints after the 2019 accident were very similar to those apparent following the first accident. From a psychiatric perspective, Dr. Ballon could not state that any of the applicant’s issues were directly related to the 2019 accident. While Dr. Ballon believes that the applicant has a major depressive disorder and some form of unspecified stress disorder as well as a problematic use of medications, all of which would benefit from treatment, these issues were all pre-existing at the time of the 2019 accident. He stated that the applicant ultimately does not have any psychiatric condition that would fall outside of the MIG.

58However, he also acknowledged that the applicant may suffer from some pre-existing psychiatric issues of chronic depression and anxiety, which could affect recovery from injuries and conditions that are related to the subject accident.

59Essentially, Dr. Ballon deferred to Dr. Clifford’s opinion as the most recent co-assessor with respect to the applicant’s physical pain rather than that of Dr. Teasell, the applicant’s treating physiatrist. As Dr. Clifford did not mention tears in the applicant’s rotator cuff or fibromyalgia, Dr. Ballon could not comment on these potential factors when he formulated his own opinion. He never received any addendum from Dr. Clifford that would prompt him to alter his own opinion.

60The applicant takes the position that little evidentiary weight should be given to Dr. Ballon’s evidence as he focussed almost entirely upon Dr. Clifford’s report with respect to his physical findings. Dr. Ballon’s report omits the more nuanced elements in Dr. Clifford’s assessment related to neuroplasticity and the need for further treatment as well as the findings of the applicant’s treating physiatrist, Dr. Teasell. However, since Dr. Clifford could not find that either condition was caused by the 2019 accident, there is no reason to conclude that Dr. Clifford had reason to issue an addendum, let alone one that it would necessarily cause Dr. Ballon to alter his own opinion. Similarly, since Dr. Teasell came to much the same opinion on the tears, that Dr. Ballon did not receive his later report is of no consequence. Dr. Ballon was aware of Dr. Teasell’s finding that the applicant’s pain had worsened following the 2019 accident and given Dr. Teasell’s description of the applicant’s generalized pain, this was sufficient.

61In his own testimony, Dr. Clifford emphasized that fibromyalgia is a syndrome rather than a disease and highlighted the absence of any tissue damage. He stated that fibromyalgia is an example of chronic central pain and caused by reversible changes in the central nervous system rather than peripheral tissue damage.

62In T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (‘T.S.’), the Tribunal held that that chronic pain is not captured by the Schedule’s minor injury impairment level. Although this decision is not binding upon me, I find it persuasive in terms of whether chronic pain properly falls within the limitations of the MIG. At paragraphs 19 and 20 of T.S., the Tribunal distinguished between the purpose of the MIG and the lengthier time for recovery inherent in chronic pain:

The MIG also provides a “functional restoration model” for treating minor injuries. It outlines a structured 12-week treatment program for those injured in car accidents that sustain a minor injury. The MIG references treatment for ‘Whiplash Associated Disorder’ (“Whiplash”) but includes no reference on how to treat or diagnose chronic pain. By definition, chronic pain is a condition that persists for three to six months after an initial trigger or injury.

Taking together the language used in s. 3 and the binding MIG, I conclude that “minor injury” does not encompass an impairment such as chronic pain because chronic pain is not included in the definition and does not fit into the MIG’s 12-week treatment program.

63The applicant relies primarily on the evidence of Dr. Teasell as he was her treating physiatrist since before the 2019 accident and as such, he would be in the best position to isolate the effects of that second accident from the effects of her pre-existing injuries. As he found that the applicant’s symptoms had worsened, particularly with respect to her right shoulder, in addition to presenting with an all-over pain, he diagnosed her with fibromyalgia. He also emphasized that this diagnosis only applied following the 2019 accident as it reflected the change in her symptomology. Although her pain had improved between the 2019 accident and the hearing, it remained worse than the pain before that accident and substantively different.

64However, neither Dr. Teasell nor Dr. Clifford could state that the tears discovered in the applicant’s right shoulder were caused by the 2019 accident, only that the pain in this same area worsened after that collision. Significantly, both agreed that the applicant suffers from chronic pain syndrome though they differed to some extent over the appropriate label for her condition. Essentially, while Dr. Teasell diagnosed the applicant with fibromyalgia, Dr. Clifford described the same disorder as chronic pain syndrome. The applicant noted that chronic pain syndrome cannot be treated within the MIG.

65The respondent emphasized that although Dr. Teasell diagnosed injuries that the applicant sustained in the 2014, he did not diagnose any physical injuries that she sustained as a result of the 2019 accident. While he diagnosed increased pain and fibromyalgia after the second accident, neither are injuries, but are symptoms of injuries. Dr. Teasell observed that the applicant reported pain all over her body both before and after the 2019 accident but noted both that she may have developed this condition following the first accident and that his fibromyalgia diagnoses remained tentative by December 2020.

66As well, on the applicant’s own evidence, the pain that Dr. Teasell described as fibromyalgia may have been present well before the 2019 accident. On April 17, 2015, the applicant attended for a chronic pain evaluation at InMedic Pain Management Centre, where she described to Dr. Ceara McNeil “widespread body pain that is aching, burning and constant” that fluctuated in intensity throughout the day based upon her activity levels and was accompanied by numbness in the fingers of her left hand. She reported that “physiotherapy helped to a small extent with her pain” and that massage therapy was also “only mildly successful.” Dr. McNeil ultimately stated in her letter that, amongst other conditions, the applicant “meets the nontender point criteria diagnosis of fibromyalgia.” Like Dr. Clifford over five years later, Dr. McNeil recommended a multimodal approach, including regular physical activity, to manage and reduce her pain symptoms. As a result, even putting aside the evidence that fibromyalgia may well have been present before 2019, even if it was not, the applicant submitted no expert evidence that causally linked this condition to the applicant’s injuries from the latter accident.

67Ultimately, Dr. Clifford provided the only diagnosis with respect to the applicant’s physical injuries from the 2019 accident, which was that she presented with soft tissue injuries either WAD I or WAD II, but no evidence of anything else. As with fibromyalgia, the small tears in the applicant’s rotator cuff also represent a red herring since neither Dr. Teasell nor Dr. Clifford could conclude that they were not present before the 2019 accident or were caused by it, particularly as the applicant had complained of pain in her shoulders for years following the 2014 accident and could not reach above her head.

68The parties substantially agreed that the applicant had chronic pain syndrome for years following the 2014 accident. However, for the applicant to demonstrate that this condition cannot be treated within the MIG, she must prove that it is combined with significant functional limitations or that it was a pre-existing condition that prevents treatment within the MIG. Although the applicant demonstrated that this was the case with respect to the 2014 accident, this was far less clear with respect to the 2019 accident. There was no medical evidence produced to demonstrate that the applicant developed chronic pain as a result of the 2019 accident. Essentially, she did not demonstrate a substantial change in her level of functionality between the periods preceding and following the 2019 accident, let alone a decline that could be causally attributed to the effects of the latter accident.

69The Tribunal has repeatedly held that a pre-existing condition will rarely remove an insured from the MIG. For instance, in Sarchami v. Jevco Insurance, 2021 CanLII 127465 at paragraph 14 (ON LAT), the Tribunal described the criteria as follows:

For an applicant to be removed from the MIG, there must be:

Compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.

Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.

70Similarly, in 17-001129 v. Unifund Claims Inc., 2017 CanLII 77341 at paragraphs 15-17 (ON LAT), the Tribunal confirmed the necessary criteria for removal from the MIG for a pre-existing condition:

The MIG does permit an applicant with predominately minor injuries to be removed from its coverage if he has a medically documented pre-existing condition, and compelling evidence from a health practitioner that will prevent him from achieving maximal recovery from those injuries if he is subject to the $3,500 cap on treatment costs.

The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (“OCF-18”) with attached medical documentation, if any, prepared by a health practitioner.

71Even if there is an established pre-accident condition, as the Tribunal noted in C.P. v. Aviva Insurance Canada, 2021 CanLII 28683 at paragraph 42 (ON LAT) (‘C.P.’), subsection 18(2) requires a second step for removal from the MIG. Specifically, an applicant must provide compelling medical evidence to demonstrate that achieving maximal recovery will be impaired by this condition if the insured person is subject to the MIG. In the same decision, the adjudicator noted at paragraph 36 that partial rotator cuff tears fall within the MIG as partial tears are “minor” in nature.

72In the present case, the tears in the applicant’s rotator cuff are not the pre-existing condition that permits the applicant to escape the confines of the MIG. Rather, it is the applicant’s chronic pain that the parties substantially agreed predated the subject accident. Although the respondent takes the position that the Schedule requires a “diagnosis,” the actual wording in subsection 18(2) simply requires that a health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident. In the present case, Dr. Teasell, a health practitioner within the meaning of the Schedule, determined and provided compelling evidence that the applicant had a pre-existing medical condition, specifically chronic pain, that he documented before the subject accident in his written assessment dated October 6, 2016. This determination was supported by Dr. McNeil’s earlier report dated April 17, 2015, as cited by the respondent. Moreover, notwithstanding their differences in labelling the applicant’s impairment, Dr. Teasell and Dr. Clifford agreed that she suffered from chronic pain prior to the 2019 accident and that this condition had impaired her functionality. As this issue is not even in dispute, I find part of the evidence is compelling.

73As noted in C.P., the second part of the test requires the health practitioner to determine and provide compelling evidence that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from the minor injury if she is subject to the limit or is limited to the goods and services authorized under the MIG.

74I agree with the applicant that Dr. Teasell offers the most persuasive evidence of the applicant’s condition as he alone could offer expert evidence from before and after the second accident. As noted above, Dr. Clifford acknowledged that he could not offer an opinion on her symptoms in the context of an ongoing trend. However, although Dr. Teasell testified that the applicant would benefit from further physiotherapy, he never stated that her chronic pain will prevent her from achieving maximal recovery from the minor injuries caused by the second accident if she is subject to the MIG. Rather, he testified that her condition is likely permanent and, despite some observed improvement since the 2019 accident, he offered no opinion on whether restriction to the MIG would prevent her from achieving maximal recovery. As a result, the most compelling evidence before me on the issue of the MIG was that provided by Dr. Clifford who testified that the applicant’s injuries fell within the MIG based upon his determination that her injuries represented soft tissue damage and that those injuries have fully healed.

75Unfortunately, although Dr. Teasell, Dr. Clifford and Dr. Ballon all testified that the applicant would undoubtedly benefit from further treatment, I find that she failed to provide compelling medical evidence to demonstrate that achieving maximal recovery will be impaired by this pre-existing condition if the applicant is subject to the MIG.

Entitlement to a Non-Earner Benefit

76I also do not find that the applicant has demonstrated on the balance of probabilities that she is entitled to a non-earner benefit.

77Subsection 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person 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. Subsection 3(7)(a) of the Schedule defines “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.”

78In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (‘Heath’) at paragraph 50, the Ontario Court of Appeal set out the guiding principles relating a claimant’s entitlement to a non-earner benefit:

1. The starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life involves a comparison between the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

2. Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

3. In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his or her pre-accident life.

4. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

5. The phrase “engaging in” should be interpreted from a qualitative perspective to indicate more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity.

6. In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

79The applicant bears the burden of proving her claim for a non-earner benefit on a balance of probabilities. She also must demonstrate both a causal link between the accident and her impairment and that her impairment results in a complete and continuous inability to carry on a normal life.

80The Tribunal has routinely described this evidentiary burden as onerous. For example, in 16-000670 v. Aviva Insurance Company, 2017 CanLII 39433 at paragraph 53 (ON LAT), the adjudicator described entitlement to a NEB as “a high bar to meet.” Similarly, in Roziyeva. v. Aviva General Insurance, 2021 CanLII 69283 at paragraph 11 (ON LAT), the adjudicator described the high threshold, noting that, “the onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.” Furthermore, as the Tribunal stated in Tetruashvili v. Toronto Transit Commission, 2021 CanLII 134542 at paragraph 9 (ON LAT), sustaining serious injuries or minor life changes does not automatically entitle the applicant to a NEB. Rather, the applicant “must show that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.”

81It is also not sufficient for the applicant to demonstrate that since the accident she has participated in daily activities at a reduced capacity or has conducted activities with pain as this level of engagement does not amount to a complete inability. On the contrary, as the Tribunal noted in 17-003731 v. Aviva Insurance Canada, 2018 CanLII 81898 at paragraph 27 (ON LAT), the Schedule requires a complete inability as the legislation was intended to clearly differentiate a reduced or affected ability and a complete inability and the latter must be clearly satisfied. In terms of the evidence required to establish entitlement, in the same decision the adjudicator emphasized that a disability certificate was not sufficient. Objective supporting evidence to corroborate the insured’s self-reports is necessary to prove entitlement to a NEB.

82It is also not sufficient for the applicant to demonstrate that the accident caused injuries or pain or that the applicant’s pre-existing injuries have been aggravated. The applicant must demonstrate that the injuries and associated pain was directly caused by the 2019 accident and have significantly interfered with almost all of her pre-accident daily activities. As in 16-003010 v. Aviva Insurance Canada, 2017 CanLII 46346 (ON LAT), the only document filed to support entitlement to a non-earner benefit from this accident is the disability certificate. Unfortunately, this is not enough to meet the high threshold for entitlement to non-earner benefits. Similarly, in 16-004399 v. Unifund Assurance Company, 2017 CanLII 59505 at paragraph 23 (ON LAT), the Tribunal emphasized that the disability certificate serves only as a subjective overview of the applicant’s condition rather than a diagnosis:

Regarding the Disability Certificate, its purpose is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. The information contained in a Disability Certificate is not a diagnosis, but rather a preliminary impression of the applicant’s physical presentation based on information the applicant’s provides and the assessor’s cursory examination. As such, the submission of a Disability Certificate is not sufficient on its own to support a claim for NEBs.

83In the present case, the only objective evidence that the applicant suffers from a complete inability to carry on a normal life is the ticked “yes” box in her disability certificate completed by her physiotherapist on March 5, 2020. The only expert report produced by the applicant was Dr. Teasell’s dated April 22, 2022, in which he considered the applicant’s functionality before and after the 2019 accident. Dr. Teasell divided activities of daily living into two categories of basic care and more complex activities. Basic care encompasses such tasks as bathing, putting on clothes, toileting, getting up in the morning and being able to eat, all of which the applicant is able to do independently, albeit more slowly. By contrast, she encountered difficulties with more complex tasks such as managing her house, meal preparation, washing dishes, cleaning and grocery shopping as these are the types of activities that aggravate her symptoms. The applicant also struggles with these tasks as she is both traditional and a perfectionist who imposes very high standards on herself with respect to the performance of these tasks, particularly the housework and because she does not get a lot of help from family members.

84Dr. Ballon offered much the same evidence with respect to the applicant’s ability to engage in substantially all of the activities in which she ordinarily engaged before the accident. Her injuries from the second accident worsened the pre-existing pain and, although it interfered with her activities of daily living, she was still able to engage in these activities albeit slower and with necessary pacing.

85The applicant took the position that although the effects of her injuries from the 2014 accident rendered her daily living less than easy and rendered her a marginalized individual, prior to the 2019 accident, her husband was able to help with such chores as cleaning, mopping, sweeping. At that time, she was able to carry out substantially all household tasks with minimal difficulty. For example, she was primarily responsible for the laundry for her household. With respect to meal preparation, she needed some assistance with cutting and chopping items. Both K.S. and Dr. Teasell emphasized that the applicant had learned to incorporate various pacing strategies and frequent breaks during the period between the accidents. In addition, by the time of the second accident, her claim from the 2014 accident had settled, thereby resolving some of the financial anxiety associated with that collision and thereby enabling her to cope better with the remaining symptoms. However, Dr. Teasell had warned her that this was likely only a short term benefit.

86The applicant testified that the 2019 accident ruined her life. She described a reduced level of functioning to K.S. and M.M. during her OT assessment. As a result, she takes the position that her injuries from the second accident further marginalized her and prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the second accident.

87Following the 2019 accident, all tasks take considerably longer to complete if she attempts them at all. She testified that she is even slower now than before the second accident and has difficulties focussing, such as deciding where to start. She has significant difficulty cleaning her house and expressed considerable embarrassment at its present condition given the pride she takes in her housekeeping. As a result, she still attempts various tasks despite the increased pain, fatigue and time involved in completing them.

88She testified that, following the 2019 accident, she lacks grip strength in both hands and cannot reach over her head to clear cobwebs and dust. Similarly, bending over also results in pain and has adversely affected her ability to put on socks and conduct toe care. She noted at the hearing that she used to wash her floors twice each week and now does not even want to start as she is aware that it would take all day to finish. As well, she fears dropping dishes while cleaning them and noted that no one helps her with these tasks. As with other tasks, she cleans the dishes very slowly now, using pacing techniques learned after the 2014 accident. K.S. observed her lifting a small pot from approximately knee height to waist height. K.S. testified that when the applicant completed this task, she used her right hand on the counter to support her upper body.

89K.S. observed the applicant transfer independently from sitting to standing on multiple occasions throughout the assessment. When transferring, she needed to exert some effort and she required her arms to help her stand. She also required increased time to fully straighten once standing. She was observed to transfer independently in and out of bed, although she used her hand to support her head while lying on her side and appeared stiff with limited movement in her cervical spine. When turning she appeared guarded and slow in her movement. The applicant reported that she is independent with toilet transfers and was observed transferring from a seated position to standing without the use of her upper extremities or an external support. She also reported that she is independent with shower transfers but expressed anxiety over the potential for falling while transferring or while standing in the shower.

90K.S. observed the applicant climbing the stairs using a reciprocal and cautious gait and grabbing the railing to help pull her body up. When descending, the applicant demonstrated a left hip hike and slow eccentric contraction on her left leg decreasing the amount of bend required from her left knee. The applicant advised K.S. that following the 2019 collision, she experienced issues with dizziness and light headedness. She also stated that she feels unsteady on her feet and fears slipping and falling particularly in the shower. K.S. observed that on several occasions, she relied on external supports for added stability. As a result, K.S. recommended that she continue with physiotherapy.

91The applicant described multiple emotional changes since the 2019 accident and reported increased tearfulness, irritability and increased driver anxiety. During the assessment with K.S. and M.M., she became tearful when explaining how her injuries have impacted her family and prevented her from supporting her son and husband when she feels they need her. Although these psychological problems were present prior to the 2019 accident, K.S. noted that the applicant described them as a more significant barrier after that collision. Specifically, she had used planning and pacing to better cope with the emotional and physical effects of her prior injuries, but was struggling following the latter accident.

92The applicant reported to K.S. and M.M. that she remains independent with cooking however she frequently cooks simpler meals most days. Prior to the second accident, she used to enjoy making large curries with her husband. However, since the 2019 accident, she cooks simpler meals that require only a few steps such as rice and lentils. She noted that her husband enjoys flavourful food and she used to cooked complex meals from scratch. He has expressed dissatisfaction with the quick and simple meals she now prepares. Although he is able to prepare basic meals for himself, the exertion causes him pain and this in turn affects her emotionally. On the few occasions that she does cook more complex meals, she noted that it now takes her longer to prepare ingredients due to increased fatigue while standing and she requires several rest breaks. She reported her complex dinners took approximately one hour to cook before the second accident and now they take approximately one and a half to two hours. Her kitchen is organized with common cookware items placed at shoulder to hip level to reduce strain as reaching up or down is difficult. Otherwise, she must rely on her son to assist when he is present but he is often busy elsewhere. She used to entertain for family during holidays; now no one comes over and she attends at her home. While she and her husband very occasionally visit friends and family, they consistently eat at home.

93While she and her husband used to shop for groceries once a week, given their reduced energy, they now shop a few times during the week for less items at a time. She takes her husband with her as he moves very slowly due to his own injuries and she prefers not to leave him unattended. She acknowledged that they altered their grocery routine primarily after the lockdowns for COVID-19 began, but emphasized that her injuries prompted the changes rather than the social distancing restrictions.

94Before the 2019 accident, the applicant tried to focus on bettering her life and used meditation and yoga to assist with this endeavour once or twice weekly. Now because she is unable to kneel, she no longer practices either anymore. Similarly, she no longer attends at temple as she cannot sit or concentrate. She has drastically reduced praying at home to a few words spoken for seconds while standing. Although she acknowledged some difficulties attending temple regularly before the 2019 accident, she was able to attend various community festivals. Following the 2019 accident, she is no longer able to attend either the temple or festivals. As her religion is very important to her, these changes represent a substantial reduction in the quality of her daily life. She has also withdrawn socially as she used to go for walks by herself and with friends; following the 2019 accident, she stays home. As a result, her level of marginalization and isolation within her home increased following the second accident.

95Although the applicant is independent in her daily self-care, she has made a number of changes to simplify her routine following the 2019 accident. For example, before the subject accident, the applicant used to dress up and apply cosmetics. Now she does not want to get ready and wears comfortable clothes that are easier to put on and remove. She reported to K.S. that she sits to dress now and requires more time due to her fatigue and pain. She also stated that she showers less frequently since the collision. Prior to the 2019 accident, she would shower five days per week; since that collision, she has decreased her frequency to three to four times per week.

96The applicant also described an increase in driver anxiety since the 2019 accident. While she continues to drive, she is nervous and fearful of another collision. She also generally avoids highways, but had done so prior to the second accident. However, this evidence conflicts somewhat with Dr. Ballon’s evidence. Dr. Ballon testified that she had advised him that she had not been driving since the 2014 accident could not tolerate even being a passenger due to anxiety.

97She has no family in the area and her husband is unable to assist her due to his own injuries. While she has two adult sons who live in the London area, one had his own accident and neither attend at the applicant’s residence regularly enough to assist her. On January 21, 2021, she told Dr. Ballon that her daughter-in-law does not like her or her husband and has kept her son from attending at her home. She said this was a major issue that also caused her to feel depressed. She said despite her and her husband struggling in pain for the last few years, both her sons refused to help do anything in regard to assisting them at home. At one point during cross-examination, she appeared to forget that she had advised the OTs on October 7, 2019 that her older son was involved in his own motor vehicle accident, thereby increasing her own caregiving duties.

98She testified that she is depressed and mentioned at several points during the hearing that the lack of anyone to assist her is a serious concern. While she would like to see a therapist, she cannot afford this service out of pocket.

99The applicant believed that she could no longer work following the 2014 accident and did stop working in 2015. Although Dr. Teasell testified that she could likely remain working for the family business on a part-time basis due to the flexible hours of that position, he did not believe that she could manage even that job after the second accident.

100In considering the important factors in her life, the applicant identified the three areas of home, temple and socialization, all of which experienced significant qualitative change after the 2019 accident. While she can accomplish many of the same tasks as she did before the 2019 accident, the quality of the engagement has significantly reduced. She has simplified some tasks and takes significantly longer to complete others, to the point that these compromises impact her depression. Dr. Clifford testified that the applicant feels pain and makes efforts to avoid this pain and this avoidance limits her engagement in activities that are important to her. To that end, the applicant emphasized the sixth factor in Heath requires a consideration of whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the applicant is practically prevented from engaging in those activities. Even with personal care tasks, she has simplified her dress and hair care. As a result, the applicant’s sphere of activity has been further diminished in terms of her ability to manage.

101However, the applicant described a similar loss of engagement prior to the second accident to a number of health practitioners. For instance, she advised Dr. Menard on March 15, 2015 that she was “limited in her ability to walk for long periods or play with her dog as she used to do.” She told Dr. Yee on September 7, 2016 that she had not been able to resume activities that she used to enjoy such as walking the dog, exercising or going for long walks and that she had difficulties with heavier housekeeping chores. At that point, over two years after the 2014 accident, she agreed that she had made no improvements. It was around this same time that Dr. Teasell formed the opinion that she was not likely to get any better, that she had reached maximal medical improvement and that her injuries were permanent.

102The applicant also told Dr. Reist in 2017 that her problems were interfering with her relationships with others and her leisure, cultural and recreational activities due to pain and lack of motivation and reduced energy. She told Dr. Reist that the same lack of energy was also interfering with her self-care, including showering and even combing her hair and that it was a struggle to complete daily housekeeping tasks. On October 17, 2017, she advised the speech language pathologist, Amy Tremblay-Prevost, that she only had one friend and that she only occasionally texted that person and only conversed with her monthly.

103In the questionnaire that she completed on July 17, 2017 to obtain CPP Disability Benefits, she stated that in addition to ending her employment, she had “stopped all activities,” offering for example that she was “no longer able to go for longer walks, attend public events, attend prayers in temple, gardening.” In the same questionnaire, she stated that she could not reach above her head, bend to clean the floors, dust or clean the bathrooms or toilets. She stated that it took her longer to cook. She could not style her hair and it took longer to complete other basic self-care tasks and experienced pain while she conducted them.

104She also told her future care costs assessor on July 24, 2017 that she gave up activities that she used to enjoy such as going to temple or travelling to India. She also stated that on a good day, she could only manage to prepare light meals and that much of the housekeeping tasks that she used to perform before the 2014 accident was done by others afterwards. The resulting report, dated October 19, 2017, indicated that the applicant was only independent with respect to light housekeeping and would require assistance with more onerous tasks for life.

105Dr. Ballon also found no functional or substantive change in the applicant’s anxiety and depression from before the 2019 accident. She experienced the same family stressors at home before and after the second accident and the death of her dog and the COVID-19 restrictions, although negative, did not result in any significant functional shift in her condition from before the 2019 accident. Dr. Ballon testified that because he could not actually connect the second accident to any psychiatric conditions at the time that he assessed the applicant, he could not approve a non-earner benefit.

106Dr. Keith Hayes attended at the applicant’s home to assess her future needs and prepared a future care costs report dated October 19, 2017. During the related interview, the applicant agreed that she was experiencing a lengthy list of symptoms including a number of cognitive symptoms. She told Dr. Hayes that to manage her symptoms, she went to massage and physiotherapy every two weeks and psychological counselling once every two weeks and that she had given up a number of activities that she used to enjoy such as going to temple and traveling to India.

107As of March 29, 2018, the applicant’s insurer at the time, Economical Mutual Insurance Company (‘Economical’), also approved her requests for seven more weeks of both massage therapy and physiotherapy. On May 31, 2018, Economical also agreed to fund a number of catastrophic impairment assessments. She and Economical ultimately entered into a full and final settlement in June 2018 with respect to the applicant’s injuries from the 2014 accident. At the time, she was receiving income replacement benefits and the settlement included future benefits. The applicant agreed that she abruptly stopped attending physiotherapy as of the date of the settlement, but testified at the hearing that she could do the necessary exercises by herself. She also explained that the restrictions related to the pandemic caused her to stop attending physiotherapy.

108Dr. Clifford testified that, as with the 2014 accident, although the applicant’s soft tissue injuries from the 2019 accident had healed by the time of his examination, her pain and loss of function persisted. As there was no evidence of ongoing tissue pathology, he concluded that the soft tissue injuries caused by the second accident had healed. However, as with the earlier accident, the applicant had reported both persisting and increasing complaints of pain and an inability to conduct her usual activities. Dr. Clifford concluded that based upon the soft tissue injuries involved and the applicant’s chronic pain that she was manifesting, there was no basis for long term disability.

109Rather, he opined that the treatment that she received after the first accident and continued to receive after the second represented a factor that held her in a state of dysfunction. He stated that misuse of the acute medical model results in overmedicalization of the patient, causing the pain to worsen in terms of intensity, distribution and duration; similarly, functionality also deteriorates. He recommended a rehabilitative restoration strategy that would provide an opportunity to improve her pain and functionality. The ongoing physiotherapy, medication and narcotics received after the 2014 accident and continued after the 2019 accident would have made the applicant feel passive and dependent.

110However, at most, the applicant demonstrated a somewhat reduced capacity compared to her level of functionality from before the second accident and highlighted factors other than her injuries from the 2019 accident that had changed, specifically the level of assistance she received from others. While her husband had been previously able to shoulder some amount of the daily household tasks following the first accident, his own injuries from the second accident effectively ended that assistance and caused the applicant to take more not less of these daily tasks.

111The applicant relied upon the Tribunal’s decision in John v. Belair Insurance Company, 2023 CanLII 65763 (ON LAT) (‘John’) for its contextual approach to the insured’s functionality. Coincidentally, that case was also before me. However, I find that the John decision is distinguishable on its facts as the applicant in that case submitted objective and detailed evidence of her diminished functionality that included a comprehensive list of activities that she could no longer perform at all or with multiple breaks and pacing. Taken together, at paragraph 78 of the decision, I found on the balance of probabilities that the changes in Ms. John’s functionality amounted to her being continuously prevented from engaging in substantially all of these pre-accident activities.

112By contrast in the present case, although there was no dispute that the applicant was less able to engage in substantially all of the activities in which she ordinarily engaged before the 2019 accident, on the balance of probabilities, I find that she was unable to demonstrate that she was not already in that compromised condition with respect to all of her daily activities before the second accident. As a result, I do not find that the applicant was able to establish a causal link between any of the activities in which she ordinarily engaged before the 2019 accident and a continuous inability to perform that activity as a result of that second accident rather than a pre-existing limitation.

Entitlement to Treatment Plans

113As I have found that the MIG applies and the parties agreed that it has been exhausted, there is no need to consider whether the proposed treatment plans are reasonable and necessary.

Interest

114Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no payments are owing, it follows that the respondent owes no interest to the applicant.

ORDER

115I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The applicant is not entitled to a non-earner benefit;

c. As the applicant’s injuries fall under the MIG, she is not entitled to any of the proposed treatment plans.

d. As no payments are overdue, no interest is owing.

116The application is therefore dismissed.