Williamson v. Aviva Insurance Company of Canada, 2024 CanLII 23462

Citation: Williamson v. Aviva Insurance Company of Canada, 2024 ONLAT 21-015051/AABS

Licence Appeal Tribunal File Number: 21-015051/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:

Karen Williamson

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Lawrence A. Berg, Counsel

For the Respondent: Bhavpreet Saini, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Karen Williamson (the “applicant”) was involved in a motor vehicle accident on December 6, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company of Canada (the “respondent”) denied a claim for non-earner benefits (“NEB”) and a treatment plan for physiotherapy. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to NEB of $185.00 per week from March 2, 2020 to December 3, 2021?

2. Is the applicant entitled to $2,359.78 for physiotherapy services, proposed in a treatment plan/OCF-18 dated February 4, 2022?

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

RESULT

3I find that the applicant is not entitled to NEB, nor the treatment plan. As there are no benefits owing, no interest is payable. The application is dismissed.

ANALYSIS

Procedural Issues

4I find that the disputed claim period for NEB was not correctly noted in the Case Conference Report and Order (“CCRO”) dated November 10, 2022, for the reasons set out below. As a result, it shall be amended to March 2, 2020 to December 3, 2021.

5I also find that the applicant submitted exhibits—consisting of a letter dated July 3, 2023 and an assessment report dated November 3, 2022, both of which were completed by Dr. K. A. Powell-Francis, anesthesiologist; a letter from Dr. S. M. Liao, physiatrist, dated July 13, 2023; and medical records from Malvern Medical Centre encompassing dates from March 22, 2022 to August 1, 2023 (Tabs 18, 20, and 22 in the applicant’s hearing brief—in contravention of the CCRO, also for reasons set forth below. As a result, I am excluding them from evidence and am not considering them in the context of rendering this decision.

6In submissions, the respondent raises both the NEB and the evidentiary matters as preliminary issues.

7First, the respondent notes that the disputed NEB claim period listed in the CCRO (March 9, 2020 to March 9, 2022) is not in accordance with the Schedule. Section 12(3)(c) establishes that an insurer is not liable to pay NEB for more than 104 weeks after the accident. Section 36(3) holds that an applicant is not entitled to any specified benefits before the submission of a completed Disability Certificate/OCF-3. The respondent submits that the OCF-3 in this matter was not submitted until March 2, 2020 and that the NEB eligibility period ends 104 weeks from the date of the accident on December 6, 2021. As a result, and in accordance with the Schedule, the respondent contends that the correct NEB period in dispute is March 2, 2020 to December 6, 2021.

8Second, the respondent argues that tabs 18, 20, and 22 of the applicant’s submissions were not provided until November 6, 2023, when they were filed with the applicant’s initial written hearing submissions. The respondent notes that the CCRO set a final deadline for document exchange of 150 days from the date of the case conference, which was held on October 3, 2022. The documents in question were therefore due to be exchanged by March 3, 2023 at the latest. As a result, the respondent claims to have been prejudiced by the submission of these documents eight months post-deadline, which precluded it from assessing this evidence with insurer examinations (“IEs”).

9Although the applicant did file reply submissions, she does not reference either of these procedural matters raised by the respondent. As a result, she leaves the respondent’s positions unchallenged.

10In the absence of submissions by the applicant, I agree with the respondent regarding both issues.

11The respondent’s position on NEB entitlement dates is well supported. The OCF-3 adduced into evidence and referenced in the applicant’s written submissions was filed on March 2, 2020, establishing a start date for NEB entitlement that then ended 104 weeks post-accident on December 3, 2021 (which is the actual date that falls 104 weeks after the subject accident, a slight difference from the December 6, 2021 date in the respondent’s submissions). As the applicant has not directed me to evidence refuting the respondent’s submissions on the OCF-3, or to claim that another OCF-3 was filed earlier that would change the onset date of NEB eligibility, I have no reason to doubt the respondent here. Nor has the applicant provided me with an argument why the termination date of NEB entitlement should not follow in accordance with s. 12(3)(c) of the Schedule.

12As for the evidentiary matter, the applicant has not provided submissions on the reasons why the documents in dispute were provided so late, or an argument as to why I should consider these documents even though they were filed well after the deadline established in the CCRO. Without such an explanation, I accept the respondent’s position that it has been prejudiced by these late productions, which were not served until the applicant filed her hearing submissions, leaving the respondent just two weeks to address this new evidence.

13Correspondingly, I have amended the NEB issue in dispute to reflect the correct dates in dispute as being between March 2, 2020 and December 3, 2021. I am excluding tabs 18, 20, and 22 from the applicant’s evidence and am not considering them in the rendering of this decision.

The Applicant is Not Entitled to Non-Earner Benefits (“NEB”)

14I find that the applicant is not entitled to NEB, as she has not demonstrated that she suffered from a complete inability to carry on a normal life. It follows that as no benefits are owing, no interest is payable.

15Section 12(1) of the Schedule provides that an insurer shall pay NEB 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. 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.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally requires a comparison of the applicant’s pre- and post-accident activities.

16Although the applicant’s submissions on the specific basis for her NEB claim are vague, I understand her argument to be that she is entitled to NEB for the maximum period of two years. She makes this NEB claim primarily due to how tears of the subscapularis and supraspinatus tendons in her left shoulder suffered in the accident caused a complete inability to carry on a normal life. She argues that this is substantiated by both the OCF-3 dated March 2, 2020 and the clinical notes and records (“CNRs”) of a number of physicians who have been providing her with therapeutic treatment.

17In response, the respondent argues that the applicant has failed to meet the test for NEB. Specifically, the respondent submits that the applicant has not satisfied the criteria outlined in Heath and that she has not adduced sufficient material evidence to establish that she suffered a complete inability to carry on a normal life as a result of the subject accident.

18I agree with the respondent that the applicant has not met the Heath test. She has not submitted any argument or evidence supporting her claim to be suffering from a complete inability to carry on a normal life. Her submissions only lightly touch on the NEB issue, with no reference to activities she engaged in prior to the accident, nor any information about how and why she was unable to take part in activities post-accident. Instead, these submissions note the injuries that she sustained in the accident and the post-accident treatment she sought, along with the statement that this demonstrates entitlement to NEB.

19Medical evidence adduced by the applicant also fails to indicate that she suffered from a complete inability to carry on a normal life after the accident. Much of the applicant’s argument centres on the OCF-3 completed March 2, 2020 by Chris Skederidis, physiotherapist. However, I give this certificate minimal weight, despite Mr. Skederidis’ opinion that the applicant suffered a complete impairment post-accident that was anticipated to last more than 12 weeks. Some of the injuries diagnosed by Mr. Skederidis—such as radiculopathy of the lumbar spine and post-concussion syndrome/headache—are outside of his expertise as a physiotherapist. Mr. Skederidis also does not adequately explain why he came to the conclusion that the applicant suffered a complete inability to carry on a normal life, simply listing “[m]ultiple injuries” and “[p]possible odontoid instability.”

20At any rate, the applicant does not direct me to evidence that would support Mr. Skederidis’ opinions. In submissions, she notes broadly that the applicant was seen and treated by Dr. Seung Ko, family physician, along with a number of specialists including Dr. Ross Roussev, neurologist, Dr. Liao, and Dr. Fathi El Hadi Abuzgaya, orthopedic surgeon. She also received sessions of physiotherapy at The Physio Clinic West Durham.

21Such records demonstrate only that the applicant sustained injuries as a result of the subject accident; they do not detail how or why the applicant suffered from the complete inability to carry on a normal life. As a result, they are of little value in determining the applicant’s entitlement to NEB.

22Much of the applicant’s written submissions focus on the tendon tears noted above and how her insurer consequently removed her from the MIG. However, the MIG is not in dispute here. This argument is of limited value in assessing the NEB claim that is before me, particularly in the absence of evidence linking these tears to the NEB test and demonstrating that they played a role in the applicant suffering a complete inability to carry on a normal life as a result of the accident.

23Further, the applicant does not point me to specific aspects of her evidence that support her NEB claim. Instead, she references medical reports and CNRs in a general fashion, noting physicians and clinics and how they treated the applicant without citing specific tabs or pages in her document brief. This is not sufficient to meet her burden, as an applicant cannot submit evidence this way and leave it up to the Tribunal to make her case.

24I am also persuaded by the results of a multidisciplinary IE assessment report dated October 26, 2021 in which three assessors found that the applicant suffered no significant functional impairments as a result of the accident.

i. In a musculoskeletal assessment report, Dr. Neetan Alikhan, physician, found that the applicant sustained soft-tissue and sprain/strain injuries as a result of the accident that did not result in any “substantial/significant functional impairment.” Accordingly, he concluded that the applicant did not suffer from a complete inability to carry on a normal life.

ii. In a psychological assessment report, Dr. Terra Seon, psychologist, did not diagnose the applicant with any psychological impairment in relation to the accident. Although Dr. Seon noted in her report that the applicant described experiencing some emotional difficulties post-accident, she concluded that the applicant did not suffer a significant impairment to her overall level of functioning post-accident and did not meet the NEB test.

iii. In an occupational therapy assessment report, Anghela Sivananthan, occupational therapist, noted that the applicant informed her that she was completing the majority of her personal care and housekeeping tasks independently or with some assistance. The applicant also demonstrated a functional range of motion, albeit with some limitations and symptoms of pain in regard to more physically demanding chores like lawn cutting and snow removal. Although Ms. Sivananthan did not specifically reference the NEB test in her report, her conclusions strongly indicate that the applicant did not suffer a complete inability to carry on a normal life.

25These are the most thorough medical assessments of the applicant before me. Accordingly, I grant them significant weight in my decision.

26For the above reasons, the applicant is not entitled to NEB, nor interest.

The Applicant is Not Entitled to the Physiotherapy Treatment Plan

27I find that the applicant is not entitled to the treatment plan for physiotherapy dated February 4, 2022, as she has not demonstrated it to be reasonable and necessary. As no benefits are owing, the applicant is also not entitled to interest.

28To be entitled to a treatment plan/OCF-18 under ss. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

29The applicant does not address this treatment plan in written submissions, nor does she direct me to evidence that would support that this plan is reasonable and necessary. As detailed above regarding the NEB issue, the applicant notes only the medical treatment that she has received for her accident-related injuries and references the attached evidentiary evidence in total.

30The only part of her submissions that seems to speak directly to this treatment plan is the final paragraph, which argues that “it is the position of the applicant that the insurers be ordered to continue to provide the applicant with treatment up to and including the five year mark from the date of the accident, which in this case would be December 2024.”

31The respondent argues that as the applicant has not provided any submissions relating to this treatment plan, the applicant cannot establish that this plan is reasonable and necessary.

32I agree with the respondent. The applicant has put forward minimal argument and evidence to substantiate a claim that this treatment plan is reasonable and necessary. In addition, and as already noted regarding the NEB matter, an applicant must make her own case based on directing an adjudicator to specific evidence. She cannot submit evidence in bulk fashion and expect an adjudicator to construct a case for her.

33Given the aforementioned reasons, the applicant is not entitled to this treatment plan, nor interest.

ORDER

34The applicant is not entitled to NEB, nor the treatment plan for physiotherapy, nor interest.

35The application is dismissed.