Citation: Estrela v. TD General Insurance Company, 2024 ONLAT 22-005801/AABS

Licence Appeal Tribunal File Number: 22-005801/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:

Linda Estrela

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Waqas Amjad, Paralegal

For the Respondent:

Nicole De Bartolo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Linda Estrela, the applicant, was involved in an automobile accident on May 3, 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

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 31, 2021 to date and ongoing?

ii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant is entitled to non-earner benefits from May 31, 2021 to May 1, 2023, plus interest.

ii. The applicant is not entitled to an award.

BACKGROUND AND PARTIES’ POSITIONS

4The applicant had previously been involved in a serious motor vehicle accident in November 2007. It is not disputed that as a result of the 2007 accident, the applicant suffered from ongoing chronic headaches and had been diagnosed with hemicrania continua. Since 2007 the applicant received regular Botox injections for her headaches, had been unable to work and was on disability benefits.

5However, the applicant submits that despite not being able to work post-2007, prior to the subject accident she was still independent in her personal care activities, performed household and housekeeping tasks, enjoyed going to church, walking and participating in activities with her family. She argues that she has been unable to engage in these activities after the May 3, 2021 accident due to her serious accident-related impairments. The applicant submits that as a result of the accident, she suffers from severe headaches, significant psychological impairments, pain in her back, neck, but predominantly her right shoulder. She relies on various s. 25 assessments and the clinical notes and records (“CNRs”) of her family physician to establish her claim.

6The respondent argues that the CNRs of the applicant’s family physician do not provide any evidence of accident-related impairments. Rather, it argues that all of the symptoms reported by the applicant post-accident are directly attributed to her untreated hemicrania continua. The CNRs of the applicant’s family physician, Dr. Saleem, state that the applicant had stopped Botox injections for her headaches after the May, 2021 accident. The respondent further relies on its s. 44 examinations where its insurer’s examination (“IE”) assessors all found that the applicant did not suffer from a complete inability to live a normal life.

ANALYSIS

Non-earner benefit (“NEB”)

7I find that the applicant is entitled to payment of an NEB for the period of May 31, 2021 to May 1, 2023.

8Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

The applicant’s accident-related impairments

9With respect to the applicant’s accident-related impairments, I do not agree with the respondent’s position that all of her symptoms were related to her untreated hemicrania continua. The medical evidence clearly establishes that the applicant sustained psychological impairments as a result of the subject accident. Her family physician noted “anxiety after accident” in a CNR entry dated June 25, 2021. The respondent’s psychological IE assessor Dr. Amena Syed in her November 17, 2021 report diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood stemming from the accident. Dr. Syed further noted that the applicant presented with some features of Post-Traumatic Stress Disorder (“PTSD”) and cautioned that the applicant was at risk of developing Major Depressive Disorder should her condition not improve. The applicant was removed from the Minor Injury Guideline (“MIG”) and psychological treatment was approved by the respondent.

10The applicant was also referred to Dr. Nadia Stroganova, psychiatrist, by her family physician. In a report dated January 3, 2023 Dr. Stroganova noted her clinical impressions as being: Major Depressive Disorder, PTSD and chronic pain. The applicant’s s. 25 psychological assessor Dr. Sedigheh Naisi also diagnosed the applicant with Major Depressive Disorder (Severe, Single Episode), Specific Phobia (Motor Vehicle) and Somatic Symptom Disorder, with Predominant Pain (Persistent). As such, the applicant has led sufficient evidence to prove that she sustained serious psychological impairments as a result of the accident.

11With respect to the applicant’s headaches, in the months post-accident she reported severe, debilitating headaches. This continued throughout 2021 to 2023. While I agree with the respondent that Dr. Saleem’s CNRs indicate that immediately after the accident the applicant had stopped Botox injections which may have left her hemicrania continua untreated, multiple neurologists have noted a number of additional possible causes of her headache pain.

12In the years post-accident the applicant was treated by Dr. Dulara Hussain, neurologist. Dr. Hussain was aware of the applicant’s prior hemicrania continua diagnosis but still assessed a number of potential causes. In addition to the hemicrania continua, Dr. Hussain noted a possible persistent headache due to head and neck injury, intractable chronic migraine, concussion symptoms, anxiety and panic attacks, and trigeminal neuralgia. In terms of risk factors for chronic headaches, Dr. Hussain noted that the “most prominent aspect of her history is this untreated anxiety, since the accident”.

13The applicant’s s. 25 assessor similarly found the cause of her headaches to be multi-faceted. Dr. Lance Majl, neurologist, in a report dated May 16, 2023 concluded that the applicant had post-traumatic migraine headaches, physical, behavioral and cognitive symptoms of post-concussive syndrome, cervicogenic headaches and symptoms suggestive of trigeminal neuralgia. This can be triggered by stress, compression, trauma and genetic tendency. In contrast, the respondent’s s. 44 neurology assessor Dr. Robery Yufe found no objective neurological signs, and noted a strong possibility of medication overuse headache. When comparing the applicant’s s. 25 neurological report to the respondent’s neurological assessment, I prefer the findings of Dr. Majl. The s. 25 assessor’s findings of multi-faceted causes of the applicant’s severe post-accident headaches is consistent with the findings of her treating neurologist Dr. Hussain.

14As such, while I agree with the respondent that the applicant’s pre-accident hemicrania continua was a factor in her chronic headaches, the applicant has led sufficient evidence linking her ongoing headache pain to the subject accident. At a minimum, the accident exacerbated the applicant’s prior hemicrania continua. I note that the respondent’s s. 44 physiatry assessor Dr. Ablorz Oshidari removed the applicant from the MIG on the grounds of pre-existing medical condition, noting the applicant’s pre-existing chronic neck pain and headaches necessitating Botox injections.

15Finally, the applicant has led sufficient medical evidence of a right shoulder impairment as a result of the accident. She reported a right shoulder injury to Dr. Saleem in the months post-accident. Diagnostic imaging showed an impingement, and the applicant was referred to physiotherapy. In September 2021 Dr. Saleem noted that her shoulder pain was not improving with medication and physiotherapy, and the applicant was referred for cortisone injections in the right shoulder. The applicant continued to consistently report right shoulder pain to all of her assessors in the years post-accident. The respondent does not direct me to any evidence that she reported such pain prior to the subject accident. As such, the applicant has led sufficient evidence to establish accident-related right shoulder pain.

Substantive entitlement to NEBs

16I find that the applicant has led sufficient evidence to establish that as a result of her accident-related impairments, she suffered from a complete inability to lead a normal life.

17The respondent submits that the applicant was already severely impaired as a result of the 2007 accident and her untreated hemicrania continua. As such, it argues that the applicant’s engagement in activities did not change pre- and post-accident. I am not persuaded by the respondent’s argument. The applicant reported to all of her assessors that despite the fact that she was unable to work post-2007, she was still able to fulfill her housekeeping and home maintenance chores, enjoyed going to church, walking and participating in activities with her children.

18After the accident, the applicant consistently reported to her assessors that she could not do any household cleaning other than light countertop cleaning and that she now relied on a monthly housekeeper, her husband and children to clean the house. While meal preparation was shared between her and her husband before the accident, the applicant now reported that she could only do very light cooking “sometimes”. The applicant’s s. 25 psychological assessor Dr. Naisi noted that the applicant’s difficulty coping with her pain undermined her motivation to engage in these activities. This limited functioning led to feeling of hopelessness and reduced interaction. The applicant’s treating psychiatrist Dr. Stroganova similarly noted in one of her progress reports that the applicant was feeling sad and frustrated that she was unable to perform housekeeping activities because of ongoing pain.

19In terms of her social and leisure activities, the applicant reported that she had completely stopped going on walks due to pain and fatigue. Whereas the applicant reported that she was previously social, she now avoided conversation. She reported to Dr. Syed that she was “not the same person” with respect to her children and husband and had no interest in doing any activities. She rarely drove post-accident due to anxiety and panic attacks. In terms of personal care activities, the applicant could only complete them with pacing post-accident, and relied on her husband and daughter to assist in tasks that involved raising her right arm.

20The applicant’s family physician provided a follow-up Disability Certificate on May 25, 2023. Dr. Bibi listed the applicant’s accident-related impairments as being right rotator cuff impingement, subdeltoid bursitis, PTSD/Major Depression, tension cervicogenic headaches and trigeminal neuralgia. It was further noted that the applicant suffers from a complete inability to lead a normal life and was unable to perform normal daily activities.

21Although the respondent’s s. 44 assessors all held that the applicant did not suffer from a complete inability to lead a normal life, I note that they did find substantial functional limitations. Dr. Oshidari, the respondent’s physiatry assessor, found reduced range of motion in the applicant’s neck and back, and could not even assess her right shoulder due to the applicant’s discomfort and pain. The respondent’s psychological assessor Dr. Syed found severely elevated testing measures for anxiety, depression and post-traumatic stress, with high risk of pain catastrophizing. Dr. Syed noted the applicant’s reports of self-limiting behaviours due to pain such as a reduction in doing almost all of her daily activities.

22As such, when comparing the applicant’s pre- and post-accident activities, I find that she has established that she was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged in pre-accident. Accordingly, she has met the test for entitlement to NEBs. Although the Case Conference Report and Order identified the period in dispute for NEBs to be from May 31, 2021 “to date and ongoing”, NEBs are only payable for 104 weeks post-accident. As such, I find that the applicant is entitled to payment of NEBs from May 31, 2021 to May 1, 2023.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that the applicant meets the test for entitlement to NEBs, the applicant is entitled to interest in accordance with s. 51.

Award

24The applicant sought an award under s. 10 of Regulation 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 applicant submits that the respondent failed to properly consider her s. 25 assessments and the CNRs of her family physician. She further argues that the respondent improperly relied on inconsistent s. 44 assessments and failed to order updated s. 44 assessments which would have revealed her ongoing limitations.

25I do not find that the applicant has established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to NEBs, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. I do not find the respondent’s reliance on its s. 44 assessments to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.

ORDER

26I find that:

i. The applicant is entitled to NEBs from May 31, 2021 to May 1, 2023, plus interest.

ii. The respondent is not liable to pay an award.