Citation: Nham v. Aviva Insurance Canada, 2024 ONLAT 22-005858/AABS

Licence Appeal Tribunal File Number: 22-005858/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:

Hue Quyen Nham

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Thomas Long, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hue Quyen Nham (“the Applicant”) was involved in an automobile accident on March 9, 2021, and sought benefits from Aviva Insurance Canada (“the Respondent”) 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 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. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 for the period from April 7, 2021 to March 9, 2023?

ii. Is the Applicant entitled to a medical benefit in the amount of $3,989.56 for physiotherapy proposed by Total Recover Rehab Centre in an OCF-18/treatment and assessment plan (“plan”), dated July 15, 2022?

iii. Is the Applicant entitled to an award pursuant to section 10 of Ontario Regulation 664?

iv. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

3The Applicant has not met her onus to demonstrate entitlement to the benefits claimed.

4No interest or award is payable.

PROCEDURAL ISSUES

5The Applicant referred to an affidavit in her submissions, but never appended the document to her written submissions. The Respondent identified the deficiency and highlighted that affidavit evidence was not to be tendered for the written hearing, according to a Tribunal Order. The Applicant had an opportunity to provide reply submissions, but chose not to do so.

6I find that affidavit evidence is not permitted for this written hearing as outlined in the Tribunal Order. Accordingly, I have not reviewed the affidavit or sought to review it.

BACKGROUND

7The Applicant was struck by a left-turning vehicle while attempting to cross the street at a controlled intersection as a pedestrian. The Applicant went home following the collision but later went to the hospital and was assessed. No fractures were identified on x-ray but a CT scan revealed a possible T9 compression fracture. Notably, the hospital records state that the Applicant reported no tenderness associated with the region, and the treating physician at the hospital suspected the compression fracture is “osteoporotic in nature.” The Applicant was discharged with a prescription for Tylenol and Naproxen, with instructions to follow up with her family physician as required. She has engaged in physical and psychological treatment following the accident.

ANALYSIS

Non-Earner Benefits (“NEBs”)

8I find that the Applicant has not met her onus to demonstrate entitlement to NEBs.

9Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

10I am unable to find in favour of the Applicant on the issue of her entitlement to NEBs because she has not provided any clear information on the changes in her life circumstances, as required by Heath. To put it simply, I do not know what activities she is disabled from engaging in. The Applicant’s submissions state that she does very little during the day and cannot genuinely engage in her pre-accident activities due to accident-related injuries. This is insufficient because it fails to provide any example of the activities the Applicant is unable to genuinely engage in, and the extent of that inability.

11The balance of the medical evidence does not indicate that the Applicant suffers from a complete inability to carry on a normal life. The psychological assessment report by M. Fang, social worker, supervised by Dr. S. McDowall, dated September 28, 2021, states that the Applicant reports being distracted by pain, which affects her ability to complete household chores and attend social functions. This is uncompelling because it does not demonstrate a complete inability to carry on a normal life – having some activities affected by accident-related injuries is not the same as a complete inability to carry on a normal life. The records from the walk-in clinic that the Applicant attends are equally uncompelling. Those records indicate various visits but include no complaints or other information which would indicate that the Applicant suffers a complete inability to carry on a normal life. In fact, by May 24, 2022, the walk-in clinic records indicate that the Applicant’s post-traumatic stress disorder symptoms were improving, she exercises twice daily, and goes to the gym.

12The insurer’s examination assessors agree that the Applicant does not suffer from a complete inability to carry on a normal life. The Applicant was assessed by Dr. M. D’Souza, general practitioner, Dr. A. Ebrahim, psychologist, and occupational therapist S. Lee, who together issued a multidisciplinary report, dated August 30, 2022. The clear consensus amongst the group was that the Applicant does not suffer a complete inability to carry on a normal life. Dr. D’Souza noted that the Applicant remained independent with her personal care and household activities and a physical examination revealed no objective physical impairments. Dr. Ebrahim identified some mood and anxiety symptoms exhibited by the Applicant but found that it does not appear to be significant enough to cause an impairment of functioning. Occupational therapist Lee found that the Applicant demonstrated sufficient range of motion, strength, mobility and balance, cognitive ability, and other abilities required to perform her self-care and household tasks.

13I give little weight to the disability certificate by physiotherapist A. Afifi, dated June 2, 2022. This document lists a fracture of thoracic vertebra as the most significant accident-related injury, yet the acute care records indicate that the fracture may not be as a result of the accident. Further, no records or other information was provided to demonstrate how physiotherapist Afifi came to the determination that the Applicant suffered a complete inability to carry on a normal life, as there are no assessment records or other information to explain how the determination was made.

14Accordingly, I find that the Applicant has not demonstrated that she suffers a complete inability to carry on a normal life and thus, she is not entitled to NEBs as claimed.

Physiotherapy treatment plan, dated July 15, 2022

15I find that the Applicant has not demonstrated that the physiotherapy treatment plan in dispute is reasonable and necessary as a result of the accident.

16The Applicant has not submitted any medical evidence contemporaneous with the plan in dispute. The CNRs from the walk-in clinic end as of May 24, 2022. The most recent recommendation for physiotherapy in those CNRs occurred on April 16, 2021, more than a year prior to the date of the physiotherapy treatment plan. The walk-in clinic CNRs demonstrate that the Applicant met with a physician at least 8 times following the April 16, 2021 visit, yet was never referred to or advised to continue engaging in physiotherapy. The lack of a referral for any physical treatment is consistent with the findings of Dr. D’Souza, in the August 30, 2022 report. Dr. D’Souza’s report states that the physical examination of the Applicant was essentially normal without any functional impairments.

17I am unable to conclude that a physiotherapy treatment plan is reasonable and necessary in light of the information above.

Interest and award

18Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no payments went overdue, and no interest is payable.

Award

19The Applicant sought an award under section 10 of Regulation 664. Under section 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.

20Having concluded that the Applicant is not entitled to the benefits claimed, it follows that no benefits were unreasonably withheld or delayed. Accordingly, I find no award payable.

CONCLUSION

21The Applicant is not entitled to NEBs or the treatment plan in dispute.

22No interest or award is payable.