Licence Appeal Tribunal File Number: 22-011011/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:
Edward Wackowski
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Jonathan Farine, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Edward Wackowski, the applicant, was involved in an automobile accident on November 13, 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL iSSUES
2The applicant has sought an order precluding the respondent from using surveillance evidence as it was submitted to the applicant after the production deadline. The production deadline was for the surveillance was 90 calendar days after the case conference, or August 14, 2023. The applicant contends that they did not receive the surveillance evidence until August 22, 2023. The applicant argues that the respondent did not file a motion to admit the late-filed evidence and as such, the applicant did not object as they believed the contravention of the Case Conference Report and Order (CCRO) would deem this evidence inadmissible. The applicant further argues that admitting the surveillance into evidence would be prejudicial to Mr. Wackowski.
3While I accept the applicant’s argument that the surveillance submission was late-filed, I don’t find that the admission of the evidence would be prejudicial to the applicant. The surveillance was delivered to the applicant 8 days past the deadline and the applicant’s initial written submissions were provided on January 17, 2024. Parties are required to adhere to Tribunal orders but in this case, I find that the applicant is not prejudiced by the submission of the surveillance evidence as they had ample time to review the evidence before their written submissions. I will be admitting the surveillance evidence and will weight the evidence based on its probative value.
4The applicant also sought an order precluding the respondent from using evidence from an assessment that was completed on November 2, 2023 and served on the applicant on November 16, 2023. The applicant argued that the late filing of this evidence is prejudicial to Mr. Wackowski and therefore the Tribunal should give no weight to the assessment report. This section 44 assessment was completed by Dr. Weisleder and pertains to issue number ii in dispute.
5I agree with the applicant that giving this evidence any weight would be prejudicial. According to the CCRO, the treatment plan was submitted on March 8, 2023 and denied on March 17, 2023. While I accept that the respondent has a duty to continually adjust the applicant’s file, I cannot justify an almost 8 month delay between the submission of the treatment plan and the assessment by Dr. Weisleder. The respondent had 60 calendar days from the date of the case conference (May 2, 2023) to produce any documents that they intended to rely upon. Clearly, considering the assessment did not take place until November 2, 2023, the respondent contravened the order. Considering the length of time after productions were due and the fact that the assessment took place after all production deadlines had expired, I am assigning no weight to the s.44 report of Dr. Weisleder.
ISSUES
6The issues in dispute are:
i Is the applicant entitled to a non-earner benefit of $185.00 per week from December 11, 2021 to November 12, 2023?
ii Is the applicant entitled to $1,574.48 for chiropractic and acupuncture treatments proposed by Dr. Gail Wright, submitted on March 8, 2023 and denied on March 17, 2023?
iii Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant is not entitled to a non-earner benefit of $185.00 per week from December 11, 2021 to November 12, 2023.
8The applicant is not entitled to $1,574.48 for chiropractic and acupuncture treatments.
9The respondent is not liable to pay an award under s. 10 of Reg. 664.
10The applicant is not entitled to interest on any overdue payment of benefits.
The applicant is not entitled to Non-Earner Benefits (NEB)
11The applicant is not entitled to NEB from December 11, 2021 to November 12, 2023.
12Section 12(1) 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.
13The applicant argues that they qualify for NEB because their pre-accident activities of daily living (ADL) have changed significantly since the subject accident. The applicant argues that prior to the accident they lived a very active lifestyle, doing activities such as jogging, fishing and swimming. The applicant also argues that prior to the accident they were independent with their personal care and was able to perform regular housekeeping duties. The applicant argues that after the subject accident they are no longer independent and unable to live an active lifestyle, can’t perform household duties, and need help with personal care.
14The applicant relies on the reports of Occupational Therapist Ramsay, Occupational Therapist Rogozinsky, Clinical Notes and Records of Dr. Sadek, Rivlin Medical Group, the chronic pain assessment of Dr. Karmy, the attendant care assessment of Daljeet Johal and the report of Dr. Sehdev.
15The respondent argues that prior to the accident the applicant lived a sedentary lifestyle. The respondent argues that the applicant could not have had an active lifestyle before the accident due to their cardiac issues, obesity, consistent back pain, high blood pressure and his chain smoking habit. The respondent argues that after the accident the applicant was diagnosed with stenosis, which is a degenerative disease that was not caused by the accident, but submits this does contribute to any post accident loss of independence.
16The respondent primarily relies on the reports from Dr. Bekier, the Multidisciplinary Reports filed by Dr. Weisleder, Dr. Lawson and Occupational Therapist Ramsay.
17For the reasons that follow, I prefer the evidence provided by the respondent and agree the applicant has not met the criteria found in Heath. While the applicant has shown that they have struggles with some activities of daily living, they have not been able to show that they have not met the burden of proof that they suffer from a “complete inability to carry on a normal life”.
18The applicant underwent three in person assessments, which compared his pre-accident daily activity function to his post-accident abilities. The applicant underwent an orthopaedic assessment with Dr. Weisleder, a psychological assessment with Dr. Lawson and an in-home assessment with Occupational Therapist Ramsay. Each assessor found that the applicant did not suffer from a complete inability to carry on a normal life. The reports and submissions of the applicant fail to show how the applicant’s pre-accident ADLs have changed significantly enough to constitute the test found in Heath. Further, surveillance of the applicant shows someone who is continuing with ADLs which contradict the applicant’s own answers on the Activities of Daily Living Form, used by the applicant’s assessors. For these reasons, I prefer the evidence provided by the respondent.
19I find on a balance of probabilities that the applicant is not entitled to NEBs from December 11, 2021 to November 12, 2023.
The applicant is not entitled to $1,574.48 for chiropractic and acupuncture treatments.
20I find that the applicant has failed to meet their onus to establish that the chiropractic and acupuncture treatment plans are reasonable and necessary on a balance of probabilities.
21To receive payment for a treatment and assessment plan under s. 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
22The applicant relies on reports from Dr. Sadek, Dr. Sehdev, Dr. Karmy and Dr. Goldstein. The applicant argues that since the subject accident, he has become reliant on medication that previously he was not taking. The applicant points to the report of Dr. Sadek who recommended that they undergo physical therapy and Dr. Sehdev who recommended the applicant receive physiotherapy and chiropractic treatment. The applicant further points to the reports of Dr. Karmy and Dr. Goldstein who recommend that he receive physiotherapy, acupuncture, message therapy and chiropractic treatment.
23The respondent relies on the assessment of Dr. Weisleder who found that the plan was not reasonable and necessary as the applicant has reached maximal medical recovery. The respondent further argues that the applicant had a history of back pain and was receiving treatment which was beneficial. The respondent also argues that the applicant was recommended to make lifestyle changes to deal with his consistent back pain. Lastly, the respondent argues that the applicant failed to show that the treatment plan in dispute was reasonable and necessary, in addition to the treatment that he was already receiving.
24I agree with the respondent that the applicant failed to prove that based on a balance of probabilities that the treatment plan in dispute is reasonable and necessary as a result of the accident. The applicant did have a history of back pain and was receiving treatment. Based on the evidence provided, the applicant was receiving additional treatment which was beneficial to them. The applicant has not been able to show that the treatment they were receiving was not sufficient to help them achieve maximal recovery and that the treatment plan in dispute is reasonable and necessary. I accept the report of Dr. Weisleder and agree with his assessment that the applicant had reached maximal medical recovery and therefore the treatment plan is not reasonable and necessary.
25The applicant is not entitled to $1,574.48 for chiropractic and acupuncture treatment. Based on the applicant’s pre-accident medical history, the evidence provided and the treatment that the applicant was receiving, I find that based on the balance of probabilities the treatment plan in dispute is not reasonable and necessary.
Interest
26No benefits are overdue therefore no interest is awarded.
Award
27The 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. As no benefits have been unreasonably withheld or delayed, no award is granted.
ORDER
28I order the following:
i The applicant is not entitled to non-earner benefits.
ii The applicant is not entitled to $1,574.48 for chiropractic and acupuncture treatments.
iii No interest is due.
iv No award is granted.
Released: February 21, 2025
Gareth Neilson
Adjudicator