Kwiatkowski v. Aviva Insurance Canada, 2024 CanLII 41002

Licence Appeal Tribunal

Citation: Kwiatkowski v. Aviva Insurance Canada, 2024 ONLAT 22-003242/AABS

Licence Appeal Tribunal File Number: 22-003242/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:

Dustin Kwiatkowski

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Dominique Setton

APPEARANCES:

For the Applicant: Dustin Kwiatkowski, Applicant Camille Narine-Ramrattan, Paralegal

For the Respondent: Aviva Insurance Canada, Nabila Majidzadeh, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Dustin G. Kwiatkowski, the applicant, was involved in an automobile accident on June 1, 2020, 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, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

Procedural Issue of Fairness

2In reply submissions, the applicant presented some new evidence in paragraph 9, of the submissions detailing medical attention he received while at Joyceville penitentiary, with additional dates not contained in the original submissions. These were not submitted to the respondent, as medical evidence prior to the medical assessments, which was clear because the assessors made a note that there was no medical evidence provided at the time of their assessment and the information provided in the late submissions did not detail all the evidence that that was then submitted in reply submissions.

3Firstly, the respondent had made reasonable efforts to obtain medical evidence and an explanation for the lack of information, as soon as the application was filed which was late and was simply not provided.

4Secondly, in the Notice of Motion presented by the respondent, the respondent opposes the introduction of this new evidence based on fairness. The basis of which is that reply submissions cannot introduce new evidence and arguments because it prejudices the respondent since the respondent is limited to only one reply. Raising new evidence, in reply submissions creates confusion, surprise and does not follow the rules of procedural fairness.

5I find that the applicant has introduced new evidence in Paragraph 9 therefore new arguments, in their reply submissions that do not follow procedural fairness, and I will set that paragraph aside.

ISSUES

6The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from May 7, 2021, to June 1, 2022?
2. Is the applicant entitled to $3,179.33 for physiotherapy services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 ("plan") submitted January 4, 2022, and denied February 1, 2022?
3. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant is not entitled to payment of a NEB for the period in dispute, as he has not demonstrated a complete inability to carry on a normal life.

8The applicant is not entitled to $3,179.33 for physiotherapy services proposed by Whitby Wellness Centre in the treatment plan submitted January 4, 2022.

9The respondent is not liable to pay an award under s. 10 of O. Reg. 664.

10The applicant is not entitled to any interest on any overdue payment of benefits.

ANALYSIS

The applicant is not entitled to a NEB

11Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because 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." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 which requires a comparison of the applicant's pre- and post-accident activities. The applicant is not entitled to a non earner benefit of $185.00 from May 7, 2021, to June 1, 2022.

12The applicant did not provide evidence that related to what his activities were before the accident and what they were after the accident.

13The applicant has failed to show that he suffers a complete inability to carry on a normal life and within 104 weeks after the accident.

14The respondent received an OCF-3 on August 10, 2021, which was 14 months after the accident informing the respondent that the applicant was suffering a complete inability to carry on a normal life, and that the duration was expected to be 9-12 weeks.

15In submissions, the applicant stated that the applicant had been seen by a number of specialists, due to various complaints. A list was provided but there was no assessment of what the activities of the applicant were before the accident and of what they were afterwards.

16There is no evidence regarding the test for entitlement to a non-earner benefit, the "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. There is no doctor's report that states that the applicant could not work because of any worsening of injuries caused by the accident, or any assessment of the applicant's life before the accident, where he lived, his work before and after the accident, his family life before and after, how his life is affected before and after the accident. As a result, I did not find the evidence relevant to the issues.

17The respondent arranged for an Orthopaedic Assessment with Dr. Ian Harrington on October 15, 2021, and an In-Home Occupational Assessment on October 26, 2021, with Mr. Ronald Findlay. The findings were provided in the multi disciplinary report of November 1, 2021, which assessed the applicant's activities of daily living, and social functioning and the orthopaedic condition of the applicant.

18The assessment found that the applicant functioned well in all the areas of daily living. He was independent with self-care at the time of the accident, and remains independent since. He lives with his parents and reports that he would share exterior and interior housekeeping with his parents before the accident and does so after as well. Before the accident he prepared simple meals and continues to do the same. In terms of caregiving, he reported that he had a 10-year-old son, and 7- year-old daughter, who he saw on weekends and occasionally during the week, and these visits continue. He reported that they are active, and he can play with them. I find the applicant is functioning very well in his day to day activities.

19He reported to the assessors that he can drive independently, for at least 30 minutes and then gets stiff. He started to do some construction jobs, and he has done a few renovations jobs. He goes to the gym daily, and he used to play guitar but finds it hard to hold the guitar due to the right shoulder pain. I find the applicant is functioning very well in terms of essential activities like driving, working, and going to the gym.

20The assessors reported that the applicant was observed to have an active range of motion, except for the right shoulder which showed moderate limitations. He was able to sit for 30 minutes continuously, and to stand for 5-10 minutes with no difficulty. He walked with a normal gait, climbed stairs, stooped, was able to squat, and recover. Due to pandemic restrictions during the assessment, he was not observed for lifting and carrying. I find that the applicant had an active level of activities.

21He was also observed as having a functional grip strength, and could transfer in and out of a bathtub, on a bed, and reach for items above him and on lower shelves. Overall, based on a comprehensive testing, the applicant was found to have the same functional abilities post accident and pre-accident in areas of personal care, housekeeping, caregiving, leisure activity to be independent. He was provided with some education on posture and energy conservation that would help him improve his situation. In conclusion he was not found to suffer from a complete inability to carry on a normal life as required by s. 12(1) nor did he suffer an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. I agree with this conclusion. The applicant also had an Orthopaedic assessment conducted by Dr. Ian Harrington, where the applicant was found to suffer from right shoulder pain, which is triggered by actions such as lifting. He also has neck and right arm pain. The doctor suspected he suffered from a rotator cuff tear, and some mild residual sprain or strain of the cervical spine and lower back, but this was clearly based on the examination and the report of the applicant directly as there were no medical reports such as an MRI, or ultrasound provided. In terms of disability, it was the examiner's medical opinion that the applicant did not suffer a complete inability to carry on normal life, although he showed a limitation caused by his right shoulder, which resulted in limiting his activities regarding heavy lifting, pushing, and pulling. I agree with this assessment.

22The examiner noted that he had been referred by his family doctor Dr. Dion, to Dr. Abraham, who the applicant believes is a shoulder surgeon. Dr. Abraham is of the opinion, that surgery would not fix his shoulder and therefore he did not recommend surgery. The applicant asked for a second opinion and was waiting for an appointment with another orthopaedic assessment. The applicant is entitled to obtain a second opinion. This evidence does not provide any relevant information to the Orthopedic assessment of Dr. Ian Harrington regarding his abilities to carry on his normal life.

23I find that the evidence presented at the hearing shows that the applicant does not suffer a complete inability complete inability to carry on a normal life" because the applicant functions at a normal level in all areas of his daily life. He was independent and after comprehensive testing, the multi disciplinary report showed how the applicant was found to have the same functional abilities post accident and pre-accident in areas of personal care, housekeeping, caregiving, leisure activity to be independent. I find that the applicant has not established that he suffers from a complete inability to carry on a normal life as required by s. 12(1) nor does he suffer an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

24In conclusion, I find that the applicant does not suffer a complete inability complete inability to carry on a normal life, and is not entitled to an NEB.

The applicant is not entitled to $3,179.33 for physiotherapy services.

25Section 15 and 16 of the Schedule provides that an insurer is only liable to pay for medical/rehabilitation benefits that are reasonable and necessary because of the accident. The onus is on the applicant to prove on a balance of probabilities the treatment plan is reasonable and necessary.

26The treatment plan was submitted on January 21, 2022, proposing physiotherapy services by Whitby Wellness Centre.

27After the s. 44 examination by Dr. Harrington, on October 26, 2021, which recommended active exercise with strengthening of the right shoulder exercises, further medical documents were submitted to the assessor who reviewed the medical documents.

28In the respondent's submissions they state that Dr. Ibrahim, his own treating doctor suggested continuing with an anti-inflammatory medication and to continue with shoulder exercises. Dr. Ibrahim confirmed that after the ultrasound of June 1, 2021, subsequent ultrasound of June 9, 2021, that a rotator cuff injury and expressed an opinion that even doing a repair would not help the pain. I find his own orthopaedic doctor did not recommend physiotherapy.

29In submissions the applicant relies on the clinical notes and records of Dr. Gally who recommended acupuncture for pain, not physiotherapy. The onus is on the applicant to show that the treatment plan is reasonable and necessary. The applicant has not provided any medical evidence proposing physiotherapy services. The applicant's own surgeon suggests exercise, which is consistent with the s. 44 assessor's report.

30I find that the applicant has not met his onus, and I find that that the proposed treatment plan for physiotherapy in not reasonable and necessary.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there is no benefit payable, the applicant is not entitled to interest.

Award

32The 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. The respondent did not unreasonably withhold payment of benefits or act in bad faith. The applicant is not entitled to an award under s. 10 of Reg. 664. under s. 10.

ORDER

33I order as follows:

a. The applicant is not entitled to a NEB.

b. The applicant is not entitled to $3,179.33 for physiotherapy services.

c. The applicant is not entitled to interest.

d. The applicant is not entitled to an award.