Nuroh v. TD General Insurance Company, 2024 CanLII 115414
Licence Appeal Tribunal File Number: 23-008965/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:
Yaa Nuroh
Applicant
and
TD General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Doug Wright, Counsel
Melissa Gizzo, Counsel
For the Respondent:
Jennifer Kiss, Counsel
Argita Shehaj, Counsel
Court Reporter:
Christian Ralladi
Interpreters:
Immanuel Akrofie, Twi language
Jennifer Abbey, Twi language
Justin Agobre, Twi language
HEARD by Videoconference:
October 7, 2024
OVERVIEW
1Yaa Nuroh, the applicant, was involved in an automobile accident on February 2, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2At the hearing, the applicant withdrew issues 7 through 12 as listed in the Case Conference Report and Order released March 6, 2024.
3The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 10, 2022 to date and ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from February 2, 2021 to date and ongoing?
iv. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 2, 2021 to date and ongoing?
v. Is the applicant entitled to $2,411.82 for physiotherapy, proposed by Chinguacousy Physiotherapy in a treatment plan/OCF-18 (“plan”) dated July 21, 2021?
vi. Is the applicant entitled to $1,735.44 for physiotherapy, proposed by Chinguacousy Physiotherapy in a plan dated September 8, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule.
5The applicant is entitled to an income replacement benefit in the amount of $400.00 per week from January 10, 2022 to date and ongoing. January 31, 2023, 104 weeks after the accident.
6The applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month from February 2, 2021 to date and ongoing.
7The applicant is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 2, 2021 to date and ongoing.
8The applicant is not entitled to $2,411.82 and $1,735.44 for physiotherapy, proposed by Chinguacousy Physiotherapy in treatment plans/OCF-18s dated July 21, 2021 and September 8, 2021.
9The respondent is not liable to pay an award under s. 10 of Reg. 664.
10The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
Applicant’s requests to summons Dr. Hasan and Marina Leahy
11At the start of the hearing, the applicant’s requests to summons two witnesses were denied because the applicant did not comply with Rule 8.2 of the Licence Appeal Tribunal Rules (“Rules”).
Dr. Hasan
12The applicant requested to summons Dr. Hasan in order to cross-examine him. The applicant argued that if I did not issue a summons for Dr. Hasan then the respondent should not be able to rely on his report as evidence and his report must be excluded. The applicant’s position is that she must have an opportunity to cross-examine Dr. Hasan in order for the Tribunal to accept his report into evidence under the principle of procedural fairness. In support of this position, the applicant referred me to the divisional court decision in Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”). In closing submissions, the applicant also argued that Dr. Hasan’s reports should be afforded less weight because the applicant was not able to cross-examine him.
13The respondent argues, and I agree, that Shahin is distinguished and does not apply because in that case the witness had provided untested testimony whereas Dr. Hasan is not providing any testimony. I also agree with the respondent’s submission that oral testimony is not required in order to rely on reports as provided by s.15 of the Statutory Powers Procedure Act (“SPPA”). For these reasons, I did not consider providing Dr. Hasan’s reports less weight simply because he was not testifying at this hearing.
Marina Leahy
14The applicant also requested to summons adjuster Marina Leahy (the “adjuster”). The applicant had previously requested a summons which was denied by the Tribunal. The applicant argued that I should use my discretion to summons the adjuster because the previous denial was a result of submitting an incomplete form and that the request should not be denied because of this technical noncompliance. The applicant emphasized that the issue of an award requires that the adjuster attend to be questioned by the applicant. The respondent argued that the adjuster is not providing testimony but that the applicant has the adjuster’s log notes in order to argue the issue of an award.
15Rule 8.2 sets out the requirements for filing a request for a summons which includes filing a complete form in a timely manner so that the Tribunal can adjudicate and issue a summons in advance of the 10-day deadline for service. The applicant’s requests do not comply with the requirements of Rule 8.2. Both requests were denied on this basis.
Respondent’s request to exclude the applicant’s daughter’s testimony
16At the start of the hearing, the respondent’s request to exclude the applicant’s daughter as a witness was denied.
17The respondent argued that the applicant’s daughter should be excluded as a witness because the applicant did not comply with the requirement to provide summary of the evidence that she would give at the hearing until October 5, 2024. The respondent argued it is prejudiced by not being able to prepare for cross-examination. The applicant argued that the noncompliance is merely technical. The applicant also argued that the witness’ testimony is relevant because she lived with the applicant before and after the accident. The applicant submitted that the respondent was aware of the nature of her evidence because she was a collateral source of information included in occupational therapist Ms. Li’s report that was exchanged between the parties.
18I denied the request because I agree with the applicant that the witness’ testimony is relevant and that the respondent was aware of the nature of her evidence. I also considered that the applicant’s daughter was not testifying until the second day of the hearing, which in my view provided sufficient time for the respondent to prepare for cross-examination. For these reasons, the respondent’s request to exclude this witness was denied.
Applicant’s request to question the respondent’s expert about discipline history
19On the third day of the hearing, the applicant’s request to question the respondent’s expert about their discipline history was granted.
20The applicant argued that while she did not comply with the Rules regarding challenges to expert witnesses I should exercise my discretion to allow questions about the expert’s discipline history based on the principle of procedural fairness. The applicant submitted that this noncompliance should be viewed as merely technical and that the details of the history are relevant to this hearing.
21The respondent argued that the line of question is not relevant to the issues in dispute hearing while the applicant argues this can only be decided after hearing more details about the discipline history from the expert. The respondent argued that the applicant had sufficient time from the date of the reports in 2021 and from the date of the case conference to comply with the Rules.
22Both counsel agreed that the expert is in good standing and is not restricted by the expert’s professional regulatory body. In this case, the applicant did not comply with the requirements of the Rules and based on the submissions made the discipline history is not relevant to the expert being qualified to provide expert evidence. For the reasons above, I allowed the applicant to explore the discipline history with the witness during cross examination to determine its relevance, if any, to the issues at this hearing. Neither counsel made submissions addressing weight of the expert’s testimony. Ultimately, I did not find the details of the expert’s previous discipline history relevant to this hearing because the expert remained in good standing with the regulatory body.
ANALYSIS
Catastrophic impairment as defined by s.3.1(1)8 of the Schedule
23I find that the applicant is not catastrophically impaired (“CAT”) as defined in the Schedule under section 3.1(1)8 (“Criterion 8”).
24Criterion 8 relies on the American Medical Associations’ Guides to the Evaluation of Permanent Impairment 4th edition, 1993 (“Guides”). The AMA Guides set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace and (4) adaptation (deterioration or decomposition in work or work like settings). There are four levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment and extreme impairment.
25Under Criterion 8, the applicant must prove on a balance of probabilities that, as a result of the accident, she suffers from a marked impairment (“Class 4”) in at least three of the four domains, or at least one extreme impairment (“Class 5”), due to a mental or behavioural disorder.
26The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30.
27The applicant’s position is that she is catastrophically impaired as defined under Criterion 8. She relies on a psychiatric catastrophic determination assessment report dated April 15, 2024 by Dr. Svetlana Milenkovic. Dr. Milenkovic diagnosed the applicant with generalized anxiety disorder with depressed mood and somatic symptom disorder with predominant pain and residual post traumatic stress disorder. She provided the applicant with a guarded prognosis given that more than three years had passed and in her opinion the applicant’s symptoms were not near resolution. Dr. Milenkovic provided Class 4 ratings in the domains for activities of daily living, concentration, persistence, and pace, and for adaptation.
28The respondent’s position is that the applicant is not catastrophically impaired under Criterion 8. It relies on a catastrophic impairment report dated March 20, 2024 by Dr. Sadiq Hasan. Dr. Hasan completed a previous in-person assessment resulting in a report dated January 26, 2024 assessing Criterions 6 and 7 based on an Application for Determination of Catastrophic Impairment (“OCF-19”) submitted by the applicant’s family doctor dated June 17, 2023. Subsequently, Dr. Hasan assessed Criterion 8 after a paper review. Dr. Hasan diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood as well as persistent and specific driving/vehicular phobia. Dr. Hasan provided a fair prognosis given that the applicant appears motivated to take steps to address her psychological difficulties by learning skills to cope through psychological intervention. Dr. Hasan provided a Class 2 or mild rating for the domain of concentration, persistence, and pace. He provided Class 3 or moderate ratings for activities of daily living and adaptation.
29The issue in this case turns on whether the applicant has a Class 4 impairment in the domains of concentration, persistence and pace, social functioning, and adaptation because both Dr. Milenkovic and Dr. Hasan agree that the applicant suffered from a Class 3 or moderate impairment in social functioning. While the applicant argues the Tribunal must still analyze this domain, and relies on Luluquisin v. Aviva Insurance Co. of Canada, 2024 ONSC 5369. I disagree because neither party attempted to persuade me that there was reason to disagree with a consensus between their respective experts on this rating. Accordingly, I accept their Class 3 rating for this domain. Similarly, neither party provided argued the applicant suffered from a Class 5 or extreme impairment in any of the four domains.
Concentration, persistence and pace
30For the following reasons, I give more weight to Dr. Hasan’s rating of the applicant as having a Class 2 rating in the domain of concentration, persistence and pace.
31Dr. Milenkovic establishes a Class 4 rating in the domain of concentration, persistence and pace. This domain refers to “…the ability to sustain focused attention long enough to permit the timely completion of tasks commonly found in work settings.” The report then concludes the applicant appears to have a Class 4 impairment in this domain. The report does not provide analysis or reasoning for this rating.
32In contrast, Dr. Hasan opined that the applicant has a Class 2 rating in this domain. Dr. Hasan noted that the applicant complains of attention, concentration and memory difficulties that are worse on days when her pain symptoms are aggravated. However, Dr. Hasan also reports that the applicant managed to stay focused for the two-hour assessment, answered questions coherently, and completed assessment questionnaires. Further, the applicant was able to recall the details of her accident and the names of her previous health practitioners during the assessment.
33I give more weight to Dr. Hasan’s rating because Dr. Milenkovic does not provide reasons for her Class 4 rating in her report. Further, during cross-examination, Dr. Milenkovic testified, in agreement with Dr. Hasan’s observations, that the applicant successfully completed a 90-minute assessment, was cooperative throughout, understood fully and responded appropriately, was engaged, was not evasive or defensive and was able to use her working memory to give dates and timelines relevant to the assessment. Dr. Milenkovic also testified that the applicant successfully completed the assessment and that by the end of the assessment her body language indicated she was in pain. At the hearing, Dr. Milenkovic agreed that pain is predominantly a physical symptom but added that pain affects the applicant psychologically. Despite this, Dr. Milenkovic’s report does not mention the applicant’s predominant complaint of pain or how it may affect the applicant psychologically.
34As I give more weight to Dr. Hasan’s reporting and for the reasons above, I find the applicant has a Class 2 rating in the domain of persistence, concentration and pace.
Activities of daily living
35I also give more weight to Dr. Hasan’s rating of the applicant as having a Class 2 rating in the domain of activities of daily living.
36Under the domain of activities of daily living, Dr. Milenkovic’s report states the applicant reported she avoids going out due to her anxiety and avoids leaving the home independently due to fear, as a result, spending most of her time at home watching television. Accordingly, the applicant is rated as having a marked or Class 4 impairment.
37Once again, the report does not mention pain in this analysis. However, when commenting on attendant care services within the same report, Dr. Milenkovic opines the applicant does not require any attendant care from a psychiatric perspective but requires assistance with the majority of her activities of daily living due to physical limitations. I find that this accords with Dr. Hasan’s analysis that the applicant is suffering from pain and physical limitations that affect her ability to perform personal care tasks and household chores, rather than psychological issues. Recognizing the applicant’s mental and behavioural difficulties with sleep and travelling in a vehicle, Dr. Hasan provides a moderate or Class 3 impairment rating.
38I find that Dr. Hasan’s conclusion in this domain is more in keeping with the evidence before, including the applicant’s testimony, me which shows that the applicant’s physical pain played a significant role in her ability to complete activities of daily living. This is reflected in the reports of both experts, and therefore I agree that the applicant has a Class 3 rating in the domain of activities of daily living.
39For the reasons above, in the domain of concentration, persistence and pace and for activities of daily living, I accept Dr. Hasan’s ratings. As a result, the applicant has not established the minimum ratings required to meet the definition of CAT under Criterion 8 as defined by the Schedule and I do not need to consider the remaining domain of adaptation.
Income replacement benefit from January 10, 2022 to January 31, 2023
40The applicant is entitled to an income replacement benefit from January 10, 2022 to January 31, 2023, 104 weeks post-accident.
41The Case Conference Report and Order listed the issue as: is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 10, 2022 to date and ongoing? However, applicant’s counsel advised during the hearing that the Tribunal needs to apply the pre-104 week test and not apply the post-104 week test because the stoppage of this benefit was within 104 weeks after the accident. It is not correct that the pre-104 test applies to any period after 104 weeks post-accident if the benefit was denied within the first 104 weeks. Since the post-104 week test would apply to the period of this benefit beyond January 31, 2023 and because there are no submissions made regarding the post-104 week test by either party, I am only dealing with entitlement of income replacement benefit within the first 104 weeks after the accident. Further, I am also not dealing with quantum because counsel did not argue quantum.
42To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
43The applicant’s position is that she suffers a substantial inability to perform the essential tasks of her pre-accident employment which include sitting, standing, lifting, assembling parts, following instructions and diagrams and the use of tools requiring both hands. The applicant was unable to return to her pre-accident employment after the accident. Dr. Milenkovic’s report dated April 15, 2024 opines that the applicant suffers from a complete inability to work. Dr. Hasan, applying ratings on the Brief Psychiatric Rating Scale, gives the applicant a score of 3 or moderate impairment for resilience and employability. This score corresponds with the applicant not being able to work at all in the same position but may be able to work in a less stressful occupation from a psychological perspective. Dr. Hasan leaves assessment of the applicant’s physical limitations to the appropriate medical assessor. The applicant argues that nobody has tied together her physical and psychological difficulties and I agree that when the applicant is viewed wholistically, she suffers a substantial inability to perform the essential tasks of her pre-accident employment on the assembly line.
44I find that the applicant is no longer able to use both hands to complete tasks that are essential to her employment. The applicant does not rely or use her dominant right hand. The applicant uses her left hand to support herself or complete necessary tasks. Occupational Therapist Curtis Wong noted that the applicant held her right arm in a guarded position throughout a 3-hour assessment. When seated, the applicant was observed by Mr. Wong to rest her right hand on her right leg. This observation accords with other assessors noting the applicant was observed using her left or non-dominant hand when necessary. Mr. Wong observed the applicant appeared increasingly fatigued as she progressed and was observed often closing her eyes during the assessment. While she did not request any breaks, upon conclusion, she was tearful and indicated she would rest and ask her family to prepare food for her. Occupational Therapist Kimberley Li notes the applicant uses her left hand to support herself using a quad cane. When asked to open the door to leave her home, the applicant attempted to do so with her non-dominant left hand but was unable to do so. After exiting the home, she asked her daughter to lock the door. During the applicant’s testimony she was visibly disturbed and verbalized this when asked if she could complete certain tasks such as putting on a sweater without assistance. Ultimately, she is unable to complete these tasks as a result of her physical limitations and pain.
45The evidence supports the applicant’s position that she cannot remain seated or remain standing due to physical pain. She cannot lift or assemble parts with the use of tools that require that she use both her hands. She is not able to follow instructions and diagrams which is supported by evidence of the occupational therapist.
46For the above reasons, the applicant is entitled to an income replacement benefit from January 10, 2022 to January 31, 2023, 104 weeks post-accident.
Attendant care benefits in the amount of $6,000.00 per month from February 2, 2021 to date
47The applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month from February 2, 2021 to date.
48The applicant’s position is that the Tribunal must engage in an analysis regarding quantum of ACBs even if there is a finding that the applicant is not CAT. The respondent’s position is that it is not necessary because it paid ACBs until limits were exhausted. I find that the applicant is not entitled to ACBs because I have found that she is not catastrophically impaired and her benefits have been exhausted.
49For the reasons above, the applicant is not entitled to the attendant care benefits she is seeking.
Housekeeping and home maintenance benefits in the amount of $100.00 per week from February 2, 2021 to date
50The applicant is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 2, 2021 to date.
51Section 23 of the Schedule states that an insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
52The applicant’s position is that the Tribunal must engage in an analysis regarding quantum of housekeeping even if there is a finding that the applicant’s impairments don’t meet the definition of CAT. I do not agree. I find that as I have determined the applicant is not catastrophically impaired, she is not entitled to housekeeping and home maintenance benefits.
53For the reasons above, the applicant is not entitled to the housekeeping and home maintenance benefits she is seeking.
$2,411.82 and $1,735.44 for physiotherapy, proposed by Chinguacousy Physiotherapy in treatment plans/OCF-18s dated July 21, 2021 and September 8, 2021
54The applicant is not entitled to these two treatment plans for physiotherapy services because the applicant’s funding has been exhausted.
55The applicant’s position is that the Tribunal must engage in an analysis regarding these treatment plans even if the applicant’s funding has been exhausted. I do not agree. I find that as I have found the applicant is not catastrophically impaired and the applicant has exhausted her benefits, she is not entitled to the treatment plans in dispute.
56For the reasons above, the applicant is not entitled to the proposed physiotherapy treatment plans.
Award
57The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
58The applicant argues that the respondent failed to revisit the issue of an income replacement benefit after receiving a CAT insurer examination report. In essence, she argues that the respondent failed to continually adjust the file, despite additional medical records being provided. The respondent argues that based on the information provided by the applicant the denial was proper and based on assessments dealing specifically with the issue of an income replacement benefit.
59In determining the type of conduct for which an award is appropriate, the applicable standard is set out in Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, the conduct must be found to be an “immoderate, imprudent, inflexible, and excessive” approach with respect to the respondent’s decision-making. An award should not be ordered simply because I determined that the respondent made an incorrect determination. The insurer’s conduct must rise to the level described in Plowright, that is, excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
60In this case, I find that the respondent has not demonstrated that the respondent’s conduct warrants an award because the applicant has not established that the respondent was immoderate, imprudent, inflexible, and excessive when it decided the applicant was not entitled to continuing payments of the income replacement benefit.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the income replacement benefit.
ORDER
62For the reasons above, I find that:
i. The applicant has not sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule.
ii. The applicant is entitled to an income replacement benefit from January 10, 2022 to January 31, 2023, 104 weeks after the accident.
iii. The applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month from February 2, 2021 to date.
iv. The applicant is not entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 2, 2021 to date.
v. The applicant is not entitled to $2,411.82 and $1,735.44 for physiotherapy, proposed by Chinguacousy Physiotherapy in treatment plans/OCF-18s dated July 21, 2021 and September 8, 2021.
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664.
vii. The applicant is entitled to interest on any overdue payment of an income replacement benefit.
Released: December 4, 2024
Amar Mohammed
Adjudicator