Licence Appeal Tribunal File Number: 23-007009/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:
Maria Zapata Grajales
Applicant
and
SGI Canada Insurance Services Ltd.
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Vismay Merja, Counsel
For the Respondent:
Daniel M Himelfarb, Counsel
Heard by Videoconference:
August 19, 20, 21, 22, 23, 26, 27, 28, 2024
OVERVIEW
1Maria Zapata Grajales, the applicant, was involved in an automobile accident on August 17, 2021, 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 the respondent, SGI Canada Insurance Services Ltd., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree $37.82 remains within the MIG limits.
iii. Is the applicant entitled to attendant care benefits in the amount of $3,326.72 per month from March 1, 2022, to April 8, 2023?
iv. Is the applicant entitled to attendant care benefits in the amount of $976.32 per month from April 8, 2023, to date?
v. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 24, 2022, to August 17, 2023?
vi. Is the applicant entitled to $2,471.20 for GOS-E assessment, proposed by Injury Management, in a treatment plan/OCF-18 (“plan”) dated June 22, 2022?
vii. Is the applicant entitled to $5,107.60 for a neurological assessment, proposed by Injury Management, in a plan dated June 22, 2022?
viii. Is the applicant entitled to $2,471.20 for Activities of Daily Living (“ADL”) assessment, proposed by Injury Management, in a plan dated June 22, 2022?
ix. Is the applicant entitled to $2,426.00 for a psychological assessment, proposed by Injury Management, in a plan dated December 3, 2021?
x. Is the applicant entitled to $2,952.80 for psychological services, proposed by Injury Management, in a plan dated April 28, 2022?
xi. Is the applicant entitled to $2,952.80 for psychological services, proposed by Injury Management, in a plan dated October 7, 2022?
xii. Is the applicant entitled to $4,514.00 for physiotherapy services, proposed by 9221018 Ontario Inc., in a plan dated January 30, 2023?
xiii. Is the applicant entitled to $4,321.04 for physiotherapy services, proposed by Alpha Physiotherapy and Rehabilitation, in a plan dated June 15, 2023?
xiv. Is the applicant entitled to $2,952.80 for psychological services, proposed by Injury Management, in a plan dated June 30, 2023?
xv. Is the applicant entitled to $1,326.77 for psychotherapy services, proposed by Injury Management, in a plan dated January 26, 2022?
xvi. Is the applicant entitled to $4,195.52 for psychotherapy services, proposed by Injury Management, in a plan dated March 4, 2022?
xvii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not sustained a catastrophic impairment as a result of the accident, as defined by the Schedule.
4The applicant sustained a predominantly minor injury as a result of the accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
5The applicant is not entitled to attendant care benefits in dispute.
6The applicant is not entitled to non-earner benefits.
7The application is dismissed.
PROCEDURAL ISSUES
Motion to exclude the “without prejudice statement” filed in the respondent’s document brief at Tab 11.
8At the onset of the hearing, the applicant raised a motion to exclude a statement taken by an insurance adjuster early in the accident benefits claim. The applicant submits that the statement was taken without prejudice, only the adjuster has seen it, it has not been provided to any of the assessors, and it cannot be used on the grounds that it would be prejudicial to the applicant.
9The respondent submits that the applicant has not provided any law to support the exclusion of the statement. The statement was taken by a claims adjuster for the purpose of adjusting the claim three months after the accident and she gave the statement freely. The respondent submits that just saying it is without prejudice, does not make it privileged. The applicant has had the document since 2021 and was served and filed in the respondent’s brief on August 8, 2024.
10I have not heard from the applicant how it will be prejudicial to the applicant, nor have I been directed to any supporting law. I note that this document was written by a claims adjuster, the interview was conducted via an online platform with the assistance of an English/Spanish language interpreter, and the document has only the claims adjuster’s signature. If the statement was taken at the onset of the accident benefits claim for the purpose of adjusting the claim, it is unclear to me for what reason it would be privileged. The applicant has had the respondent’s brief since August 8, 2024, and a motion has not been raised until the onset of the hearing. The applicant testified and both parties had the opportunity to ask questions to clarify any comment made by the applicant in the statement, as well as make submissions as to the weight that I should assign it. I am allowing this document to be filed; however, I have not relied on it in any part of my analysis.
Motion to dismiss the award claim under s. 10 of Reg. 664
11The respondent submits that the s. 10 award claim should be dismissed on the grounds that the particulars of the award have not been provided to the respondent in accordance with the case conference report and order. As a result of the motion, the applicant withdrew the claim.
Motion to exclude the applicant’s late produced documents contained in the applicant’s document brief, as follows:
i. Tab 51: Clinical notes and records of Dr. Olarte;
ii. Tab 53: Clinical notes and records and opinion letter of Dr. Olarte;
iii. Tabs 58, 59, 61: Prescription summary records;
iv. Tab 70: Psychotherapy Progress Report of Kathy Manuschevich, March 28, 2024.
12The respondent submits the records were served one week before the hearing and should not be allowed. The applicant has not provided an explanation as to when the applicant received them, or why they were provided late. The applicant is in breach of Rule 9.4.2 of the Licence Appeal Tribunal Rules, 2023 and to allow the documents would be unfair.
13The applicant submits that the documents at paragraph 7. i, ii, and iii, above were ordered to be produced in the case conference report and order, but they did not meet the deadline. Furthermore, the document at paragraph 7, iv, above were received on July 3, 2024, served on the respondent one day after being received, and the author of the report will be called to testify. The documents have been disclosed and it would be prejudicial to the applicant to exclude the documents.
14I find that the Licence Appeal Tribunal Rules, 2023 apply only to any appeal commenced on or after August 21, 2023, and to any appeal commenced before August 21, 2023, for which the first notice of case conference is issued on or after August 21,2023 and therefore Rule 9.4.2 does not apply to the case at hand where the notice of case conference was issued on July 14, 2023. The Tribunal’s Common Rules of Practice and Procedure, Version 1, (October 2, 2017), (the “Common Rules”), do apply to the case at hand, and Rule 9.2 provides disclosure of every document the party intends to present as evidence at the hearing at least 10 days before the hearing, or at any other time ordered by the Tribunal. Pursuant to Rule 9.4 if a party fails to comply with any Rule, direction or order with respect to disclosure, that party may not rely on the document without consent of the Tribunal. I note that the documents were served, albeit late, and that respondent’s counsel has had an opportunity to review them. I did not hear from either counsel what prejudice would be suffered if the documents are allowed, or not. I must consider the probative value of the records, which cannot be known until they are received. Both parties will have an opportunity to make submissions on weight. I am allowing these documents to be filed.
Respondent’s Submissions for an Adverse Inference
15The respondent made submissions for the Tribunal to find an adverse inference as a result of the applicant not calling any family members, or Dr. Olarte, family doctor, to testify.
16The applicant submitted that a restriction on the number of witnesses was placed upon her by the Tribunal at the case conference. I note that the case conference report and order does limit the applicant to a maximum of ten witnesses. I find the applicant was required to adhere to the case conference report and order and did so. I do not find that an adverse inference is appropriate in this case. The applicant is entitled to call the witnesses she believes are the most appropriate and is not obligated to call witnesses from whom the respondent wants to hear testimony. The respondent was able to summons Dr. Olarte or any family member if it intended to cross-examine them but did not. The doctor’s records were entered into evidence and both parties were able to make submissions on their content.
ANALYSIS
Catastrophic Impairment, Criterion 4
17The applicant has not met the onus of proving on a balance of probabilities that she has sustained a catastrophic impairment as defined by section 3.1(1) 4 of the Schedule.
18In order to prove the applicant has sustained a catastrophic impairment as defined by the Schedule on criterion 4 she must prove the following.
19The applicant was 18 years of age or older at the time of the accident, and as a result of the accident sustained a traumatic brain injury that meets the following criteria:
i. The injury shows positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.
ii. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (“GOS-E”): Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, the injury results in a rating of,
A. Vegetative State, one month or more after the accident;
B. Upper Severe Disability or Lower Severe Disability, six months or more after the accident; or
C. Lower Moderate Disability, one year or more after the accident.
20The GOS-E focuses on how the injury has affected function rather than particular deficits and symptoms caused by the injury.
21The GOS-E questionnaire considers the following;
i. Level of consciousness;
ii. Independence in the home,
a. Essential assistance every day for the activities of daily living, and
b. Frequent help or someone around the home most of the time,
c. Was assistance at home essential before the accident.
iii. Independence outside the home - shopping;
iv. Independence outside the home – travelling;
v. Work
vi. Social and leisure,
a. Regular social and leisure activities outside the home;
b. Restrictions on social and leisure activities;
c. Level of engagement in social and leisure activities outside the home before the accident.
vii. Family and friendships;
viii. Return to normal life.
22It is the applicant’s position that the subdural hematoma (“SDH”) discovered on a CT Scan on April 6, 2022, was sustained as a result of the accident on August 17, 2021. The SDH is classified as a traumatic brain injury in accordance with the Schedule for criterion 4. In support of her position, the applicant relies on the testimony and report dated November 25, 2023 of Dr. Yin-Hui Siow, nuclear medicine radiologist. The applicant further submits that she meets the criteria in accordance with the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale (“GOS-E”) for an Upper Severe Disability 6 months or more after the accident and relies on the testimony and assessment report dated March 4, 2024 of Dr. Vincenzo Basile, neurologist.
23It is the respondent’s position that the SDH was not as a result of the accident but was a spontaneous SDH that occurred months after the accident. The respondent relies on the testimony and report dated May 1, 2023 of Dr. Gordon Cheung, neuroradiologist. The respondent also submits that the applicant has not met her burden to prove that she has an Upper Severe Disability 6 months or more after the accident in accordance with the GOS-E criteria.
Traumatic Brain Injury
24I find that the applicant has not proven on a balance of probabilities that the SDH was as a result of the accident.
25I have heard evidence from several doctors who have read the same CT Scans and interpreted the images in different ways. The experts do not agree on the timing or the cause of the SDH. The fact that no one can state, with certainty, when the SDH occurred leaves both the cause and timing in question.
26Dr. Siow, radiologist and Dr. Basile, neurologist, each opined the SDH was caused by the accident on August 17, 2021. They each testified that the applicant’s cerebral atrophy created more space between the brain and the skull, which is why the SDH was asymptomatic for several months after the accident, until it grew to a critical mass that triggered headaches, and which lead to the CT Scan on April 6, 2022. They each testified that the SDH is chronic, which means that it has been present for more than 4 weeks and is indistinguishable in age beyond that time. Further, they each testified that the SDH is acute, which means that the SDH had actively bled within one week of the CT Scan. Each doctor also stated that spontaneous SDH occur in approximately 1-7% of cases, and the applicant did not report having any of the risk factors, barring her advanced age and the traumatic incident of the accident in 2021. They based their opinions of the accident having caused the SDH primarily on the reporting from the applicant that she had not incurred any other head trauma since the time of the accident, and that spontaneous SDHs are rare. I find that because neither doctor could give an explanation as to why the SDH was present, chronically and acutely for nearly eight months, but then resolved within two months after it was detected, the causation has not been established. I am not persuaded by Dr. Siow’s and Dr. Basile’s opinions because I find that without a definitive age of the SDH, their opinions that the SDH has been present since the accident is based on speculation.
27The applicant also relies on her reporting headaches to the physiotherapist who completed the OCF-3 on September 8, 2021, as supporting evidence that the SDH was caused by the accident. I find the reported presence of non-specific headaches is contrary to the experts’ statements that the SDH would have been asymptomatic until it reached a critical mass. I note that the applicant has continued to complain of headaches even after the SDH resolved, which leads to my finding that her reported headaches are not related to a head trauma.
28I prefer the evidence of Dr. Cheung, neuroradiologist, who is trained and experienced in forensic radiology, which is the determination of cause. I was persuaded by Dr. Cheung’s opinion that the applicant’s cerebral atrophy was more than is typical for someone her age, and this was her greatest risk factor for a spontaneous SDH. He opined that the increased space between the brain and the skull caused tension on the veins which increases the risk of bleeding and an SDH. Dr. Cheung agreed with Dr. Siow and Dr. Basile that the resulting increased space allowed the SDH to attain the mass that it did, without detection. Dr. Cheung testified that in his expert opinion, the density of the blood seen in the April 6, 2022 CT Scan means the SDH has acute bleeding that occurred within a few days, as well as subacute bleeding that is between a few days and less than four weeks old. This means that the SDH seen in the April 6, 2022 images is approximately one month old or less. In his expert opinion, an SDH would resolve in approximately two and a half months. I find that this opinion is supported by the May 6, 2022 and June 15, 2022 CT Scans that measure the SDH decreasing from 12mm in April, to 7mm in May, to 5mm in June.
29I note that no one is able to definitively pinpoint the date or cause of the applicant’s head trauma that may have caused the SDH. For the reasons stated above, I accept the evidence of Dr. Cheung who opines the applicant’s head trauma is a spontaneous SDH that occurred approximately one month before the first CT Scan on April 6, 2022, and is unrelated to the accident.
30On a balance of probabilities, I cannot find the applicant has sustained a traumatic head injury as a result of the accident.
31For the sake of completeness, I will continue the analysis of catastrophic impairment on criterion 4 of the Schedule.
GOS-E Questionnaire
32I find that the applicant has not proven on a balance of probabilities that she sustained an Upper Severe Disability 6 months or more after the accident.
33There have been two GOS-E assessments completed. The first one was completed by Ashok Jain, occupational therapist, on June 24, 2022. I place little weight on the GOS-E assessment of Mr. Jain because he states in his report and testified that the applicant was informed that she should not perform any requested movement that would cause pain beyond her tolerable level and that no passive movements were assessed. Mr. Jain testified that he did not challenge the applicant’s reporting or demonstration of her functional abilities but rather relied entirely on the subjective reporting or demonstration of the applicant. I find the reporting documented in Mr. Jain’s report and GOS-E questionnaire are contradictory to the video surveillance of the applicant who was able to walk independently, squat and return to a standing position without assistance or support and carry items in both arms. Furthermore, Mr. Jain relied on a Rivermead Post Concussional Symptoms Questionnaire, which assumes the applicant’s head injury was a result of the accident.
34I find the GOS-E report of Dr. Basile dated March 4, 2024, to be unreliable and I give it little weight. The majority of this report addresses the applicant’s head trauma. Only one paragraph addresses the GOS-E questionnaire, and it does not provide information as to how the determination is made that the applicant satisfies a rating of Upper Severe Disability 4. The completed questionnaire attached to the report gives number ratings without any comment, or reasons to support the chosen rating.
35Since the applicant has not established an impairment on the GOS-E, I cannot find that the applicant has sustained a catastrophic impairment based on criterion 4 of the Schedule.
Minor Injury Guideline (“MIG”)
36I find the applicant sustained predominantly minor injuries as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
37The respondent has maintained that the applicant’s injuries are predominantly minor as a result of the accident, and she has remained subject to the MIG. Thus, MIG has remained an issue in dispute.
38It is the applicant’s position that she has sustained a psychological condition, post-concussive syndrome with post-traumatic headaches, as well as chronic pain syndrome, each of which remove her from being subject to the MIG limits on treatment.
39The respondent submits the applicant has not met her burden to prove on a balance of probabilities that she has sustained injuries that would remove her from the MIG.
40The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Under s. 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
41The onus is on the applicant to demonstrate that she sustained an injury that is not included in the minor injury definition or that she has a pre-existing health condition that would preclude her from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.
Psychological Impairment
42Psychological impairments are not included in the minor injury definition. A finding that the applicant sustained psychological impairment as a result of the accident would permit her to seek treatment beyond the $3,500.00 funding limit provided by the MIG. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
43The applicant submits that her diagnosis made by Ms. Leanne Wagner, psychologist, of adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with pre-dominant pain is evidence of the applicant’s psychological condition. The family doctor listed reactive depression in a letter dated September 21, 2023.
44I note that I have not been directed to any evidence that the applicant reported any psychological symptoms to her family doctor, Dr. Olarte, before September 2023, more than 2 years after the accident. The only time Dr. Olarte mentions the applicant’s mental health is on September 21, 2023, in a letter to the applicant’s counsel, in response to a request. In that letter, Dr. Olarte lists reactive depression as one of the applicant’s conditions. However, I place little weight on this letter. Without previously supporting notations, or an explanation as to what is meant by reactive depression, or how that diagnosis was made, I am not persuaded.
45I was directed to the OCF-18 treatment plans for physiotherapy in support of the applicant’s reporting of mental health conditions. I give little weight to the diagnosis of anxiety, depression, and post-traumatic stress disorder listed on the physiotherapy treatment plans and assessment in evidence. A physiotherapist is not qualified to assess or diagnose mental health conditions, and there is no indication on the treatment plan of any medical records at that time that support the diagnosis.
46I have not been directed to evidence as to who or why the applicant was referred for psychological services in December 2021. Until September 2023, the family doctor does not indicate any reports or referrals for the applicant’s mental health. The first mention of the applicant’s mental health that I have before me, is in the psychological assessment report of Ms. Wagner.
47The applicant relies on the diagnosis made by Ms. Wagner, psychologist, to support a psychological condition that would remove her from the MIG. I am not persuaded by the psychological assessment dated March 27, 2022 because Ms. Wanger testified that she has never met the applicant. The assessment was conducted by Kathy Manuschevich, social worker and certified psychotherapist. Ms. Manuschevich is under the supervision of Ms. Wagner, however I heard evidence that the applicant’s file was not discussed because Ms. Manuschevich did not have any concerns to raise. I found the report and Ms. Wagner’s evidence unpersuasive as she did not meet, interview or assess the applicant. The opinion on diagnosis relies on the second-hand observations of Ms. Manuschevich’s and interpretations of the applicant’s subjective reporting. I note neither Ms. Wagner nor Ms. Manuschevich conducted Structured Inventory of Malingered Symptomatology (SIMS) testing to determine the validity of the psychometric testing. Accordingly, I give the diagnosis little weight.
48I prefer the insurer’s examination report of Dr. Lotfalizadeh, psychologist, dated May 16, 2022, because Dr. Lotfalizadeh personally completed the assessment of the applicant in-person. Furthermore, in his report, Dr. Lotfalizadeh opines there is no diagnosable psychological disorder because the results of the applicant’s psychometric testing is invalidated by the results of her SIMS testing. I have not heard persuasive evidence that contradicts Dr. Lotfalizadeh’s report.
Post-concussive syndrome and post-traumatic headaches
49The applicant relies on Dr. Basile’s diagnosis that the applicant has post concussive syndrome and post traumatic headaches, each of which would warrant removal from the MIG.
50I was directed to Dr. Basile’s report dated August 31, 2022 in support of the diagnosis of post-concussive syndrome and post-traumatic headaches. I accept that these diagnoses are accurate, however, I do not find that they are as a result of the accident. Dr. Basile makes a direct link between the SDH and these diagnoses, but he pre-supposes that the SDH was caused by the accident. See paragraphs 27 through 32 above for reasons that I find the SDH is unrelated to the accident. Therefore, I also find the applicant’s post-concussive syndrome and post-traumatic headaches are unrelated to the accident.
Chronic Pain with Functional Limitations
51Chronic pain with functional limitations is not included in the minor injury definition and a finding that the applicant sustained chronic pain with functional limitations as a result of the accident would permit her to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
52I agree with the respondent that the applicant has not demonstrated that she meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
53I note that the applicant has had medical intervention for conditions unrelated to the accident. For her treatment and recovery, she paused her physiotherapy. I heard testimony that, when she returned to physiotherapy a few months later, has had re-lapsed from her accident-related injuries. The applicant testified that therapy helped her knee, shoulder and back but she continues to experience pain. However, I find that ongoing pain does not rise to a level of chronic pain with functional limitations.
54I note that in his report dated August 27, 2022, Dr. Basile suggests the applicant has “likely” converted to a chronic pain syndrome. Recommendations for the applicant focused mainly on treatment for post-concussive syndrome, posttraumatic headaches, and soft-tissue injuries. Based on the lack of treatment recommendations for chronic pain, I do not find this report to be persuasive.
55I have not been directed to evidence that supports the applicant reported to her doctor that she has functional limitations, nor has the applicant been referred to a chronic pain specialist.
56I find the evidence does not support that the applicant uses prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. In fact, in the letter of Dr. Olarte, dated September 21, 2023, states that the applicant does not take any medication.
57I have heard evidence from the applicant that she is dependant on her family because she does not want to be alone and needs family to take her shopping. However, I have heard persuasive evidence that supports that the applicant is independent in her personal care and activities of daily living. I find that the applicant’s evidence that due to not having a driver’s licence she relies on family to take her to the stores and to her appointments, is not supportive of her being dependant on her family as a result of the accident.
58I have not heard persuasive evidence as to why the applicant cannot return to work or pre-accident activities. She testified that she can only carry her cellphone or something very, very light with left hand. She also testified and she reported to treatment providers that her left arm is 80% improved. The applicant testified and has reported to treatment providers that she has back pain and cannot sit for prolonged periods of time. Video surveillance of the applicant provided evidence of the applicant carrying items in both her right and left arms, as well as squatting down and returning to a standing position without the need of any support. The applicant testified that all she can do is rest, otherwise she experiences pain. However, she also testified that both her physiotherapist and her psychotherapist have told her she must be more active and try to do more. I am not persuaded that the applicant cannot participate in pre-accident activities.
59The evidence I have heard regarding the applicant’s participation in social or recreational activities pre-accident was sparse. The applicant testified that she used to go out with friends, and her hobbies were sewing and painting. I did not hear evidence upon which I am able to gauge frequency or duration in order to make a comparison to her activities post-accident.
60I find that the applicant has not lead evidence that she meets three of six criteria to support a diagnosis of chronic pain with functional limitations.
61I find the applicant has not proven on a balance of probabilities that as a result of the accident, she has sustained an injury or condition outside the definition of “minor injury” pursuant to the Schedule, that would remove her from the limits of the MIG.
Attendant Care Benefits (“ACB”)
62If find the applicant is not entitled to the attendant care benefits because she remains subject to the MIG.
63The applicant’s position is that the attendant care services were received, invoices were submitted, and the benefits should be paid. The applicant relies on the assessment reports of Mr. Jain, occupational therapist.
64It is the respondent’s position that the applicant is subject to the MIG and there is no entitlement to ACB. In the alternative, the respondent submits that the invoices submitted do not contain the specificity required and are therefore not payable.
65Section 14 of the Schedule clearly states that attendant care benefits are payable if the impairment is not a minor injury.
66Having found that the applicant is subject to the MIG, I find the applicant is not entitled to attendant care benefits.
Non-Earner Benefit (“NEB”)
67The applicant is not entitled to a non-earner benefit.
68The applicant’s position is that she has been unable to return to work, she does not go out, needs help with her activities of daily living, she is unable to do housekeeping, cook or use public transportation.
69The respondent’s position is that the applicant has not met the burden of proof and is not entitled to a non-earner benefit.
70Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the 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. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
71The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”). To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for an NEB:
i. A comparison between the applicant’s activities and life circumstances before and after the accident.
ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.
iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.
iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.
v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.
vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?
72The applicant testified that she does not go out with friends because she does not want to socialize. I have also heard evidence that the applicant prefers to not be alone, but that she is capable of being alone. I have not heard persuasive evidence that supports the frequency or duration that she socialized before the accident.
73I have heard evidence that before the accident, she liked to sew and paint. I have heard evidence that she has returned to painting and watches television. She testified she does not sew because she cannot sit for prolonged periods of time. I find the applicant’s testimony that she watched television and paints contradictory to her inability to sit for a period of time to engage in sewing.
74I have heard evidence that she was a cleaner for 8 years before the accident. She testified that the length of her shift depended on how many units she was assigned and how dirty the units were. Since the accident she has not returned to work and is only able to do light household chores. I have not been directed to compelling evidence as to frequency or duration of the tasks she is able to complete. The applicant testified that she cannot cook because her son has told her not to use the stove because she had left it on. I have not heard evidence from the assessing occupational therapist, psychotherapist, independent medical assessor or family that shared concern for the applicant using the stove or cooking for herself. Nor have I heard how frequently or to what extent the applicant cooked before the accident. Without the comparators from before the accident, I am unable to determine what her normal life was before the accident, and therefore am unable to determine if she suffers a complete inability to carry on a normal life.
75I find the applicant has not proven on a balance of probabilities that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The non-earner benefit is not payable.
76The treatment plans in dispute propose treatment that falls outside the MIG. Thus, the applicant’s entitlement to them is contingent on a finding that her injuries are not included in the minor injury definition.
77For the reasons stated above, I find that the applicant’s injuries are predominately minor, and treatment is subject to the MIG limits. Accordingly, an analysis into the reasonableness and necessity of the plans is not required as the parties agree the applicant only has $37.28 remaining.
CONCLUSIONS and ORDER
78The applicant has not sustained a catastrophic impairment as a result of the accident, as defined by the Schedule.
79The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
80The applicant is not entitled to attendant care benefits in dispute.
81The applicant is not entitled to non-earner benefits.
82The application is dismissed.
Released: November 12, 2024
Tami Cogan
Adjudicator