Wark v. Aviva Insurance Canada
Licence Appeal Tribunal File Number: 23-004933/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:
Rebecca Wark
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Patrick D'Aloisio, Counsel
For the Respondent: Meredith Harper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Rebecca Wark (the “applicant”) was involved in an automobile accident on December 1, 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 Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL MATTERS
The respondent raises an issue discrepancy pertaining to an award in the applicant’s submissions
2I find the issue of an award under section 10 of Regulation 664 is not before the Tribunal in this matter.
3The respondent argues that although the applicant’s submissions list an award at issue in this hearing, she did not seek an award in her application, nor was an award added as an issue at the case conference. The applicant did not reply to the respondent’s submissions.
4I agree that an award does not appear listed as an issue in either the application or the case conference report and order (“CCRO”) for this proceeding. While I accept the applicant listed an award as an issue in her submissions, she makes no arguments and leads no evidence to support an award claim. As such, I did not add the award to the proceeding.
5On a similar matter that makes sense to address here, the respondent’s submissions indicate that the dispute concerning the applicability of the Minor Injury Guideline (“MIG”), as identified in the CCRO for this matter, is withdrawn. Further, the applicant filed an email dated June 4, 2024, that advised she was withdrawing the issue of the MIG from her application. I therefore have not addressed the applicability of the MIG in this decision and accept the applicant has been removed for the purposes of considering the disputed OCF-18.
ISSUES
6The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 1, 2022, to date and ongoing?
ii. Is the applicant entitled to medical services in the amount of $1,550.00, proposed by iScope Concussion and Pain Centres in an OCF-18 submitted on November 4, 2022, and denied on November 9, 2022?
iii. Is the applicant entitled to occupational therapy services in the amount of $2,200.00, proposed by iScope Concussion and Pain Centres in an OCF-18 submitted on November 4, 2022, and denied on November 9, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7The applicant is not entitled to an NEB or the disputed OCF-18s. No interest is payable.
ANALYSIS
The applicant’s entitlement to an NEB
8I find the applicant has not established entitlement to an NEB.
9For context, the applicant contends she received an NEB from the respondent for the first 52 weeks after the accident (i.e., from December 29, 2021 to November 30, 2022), and that this dispute pertains to payment of the balance of the entitlement period from December 1, 2022 to December 1, 2023 (i.e., 104 weeks after the accident per section 12 of the Schedule). However, the respondent’s submissions make no mention of NEB payments prior to December 1, 2022, and the respondent produced a denial letter dated October 12, 2022, that determines the applicant is not entitled to an NEB per section 36 of the Schedule, which addresses initial entitlement to specified benefits and does not contemplate continuing entitlement to specified benefits [see, for e.g., Section 37 of the Schedule]. Given that the applicant has not shown, with evidence, that any NEB payments were made by the respondent prior to December 2022, I am proceeding on the basis that the respondent had not determined she was entitled to an NEB at any point in her claim up to December 1, 2022.
10Section 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) of the Schedule 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 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
11The applicant submits she was diagnosed with a concussion while receiving hospital treatment after the accident. She says her concussive symptoms have persisted and rendered her completely unable to carry on a normal life. The applicant explains she had to take two months off school after the accident and continues to struggle with her studies. The applicant relies on the medical records of medical records of Dr. Jessica Osumek (family physician), Dr. Aaron Kirschner (neurologist), Dr. Michael West (orthopedic surgeon), and Dr. Vincenzo Basile (neurologist).
12The respondent argues that all of its assessors concluded the applicant did not meet the NEB test because: (1) she reported her pain had either improved or resolved; and (2) she confirmed she had resumed driving and was independent in her personal care tasks and all household chores. The respondent relies on the Insurer’s Examination (“IE”) reports by Dr. Sukinder Bhangu on August 5, 2022, Dr. Jana Atkins (psychologist) on August 2, 2022, Dr. Jana Atkins (neuropsychologist) on August 2, 2022, Dr. Roy Baskind (neurologist) on March 17, 2023, and Mr. Atul Kaul (occupational therapist) on September 28, 2022.
Did the applicant sustain an accident-related impairment?
13The first part of the NEB test at section 12(1) of the Schedule requires the applicant to show she sustained an impairment as a result of the accident. I am persuaded the applicant sustained impairments relating to a concussion as a result of the accident. The applicant relies heavily on her concussive symptomology to support her NEB claim, and while her submissions do not direct me to evidence that establishes she was, in fact, diagnosed with a concussion at Milton Hospital’s emergency department after the accident, I find there are subsequent opinions offered by the applicant’s treating and assessing professionals (i.e., Drs. Osumek and Kirschner) that indicate the applicant suffered an accident-related concussion.
14The impairments arising from her concussion are made out in various medical reports as follows:
i. In January 2022, contemporaneous to the accident, Dr. Osumek completed an Accessible Learning Centre Form that indicated the applicant had suffered a concussion the day of the accident and was experiencing related symptoms of varying severity that included headaches, fatigue, vomiting, dizziness, and an array of balance, cognitive, and emotional problems;
ii. Dr. Osumek’s October 2022 report identifies ongoing post-concussive symptoms that include daily headaches and nausea;
iii. The applicant reported the same symptoms a month later in November 2022 to Dr. Kirschner, who offered diagnoses of mild traumatic brain injury, post-concussion syndrome, post-traumatic vision syndrome, chronic migraines with vision aura, and orthostatic dizziness. Dr. Kirschner also documented additional neurological symptoms that include: photophobia, phonophobia and aura; neck and low back pain; cognitive difficulties associated with short-term memory, multitasking, and concentration; mood difficulties involving feelings of irritability, depression, anxiety, anger, and frustration; dizziness; and difficulties falling asleep;
iv. The April 2023 report completed by Dr. West notes the applicant’s concussive symptoms persist along with spinal strains characterized by multiple deep soft-tissue injuries that have formed permanent deep scar tissue; and
v. A couple of months later in June 2023, Dr. Osumek reported that the applicant was still complaining of “really bad” headaches up to four times per week. That same month, the applicant told Dr. Basile that she suffered from ongoing headaches and dizziness with intermittent orthostatic light-headedness. Dr. Basile confirmed the applicant’s post-concussive syndrome diagnosis, documenting associated symptomology that included behavioural personality changes, balance impairment, and delayed physical responses as well as noting daytime fatigue owing to anxiety-induced sleep interruptions.
15I attribute some, but not full weight to the complaints of headaches in this case because the respondent produced medical evidence of the applicant reporting daily headaches in concert with six hours of daily screen time in August 2019 prior to the accident.
16However, I nevertheless find the balance tips in favour of the applicant’s claim because there is evidence of a myriad of symptoms persisting from within a month of the accident to June 2023 that physicians have attributed to a concussion. And while I agree with the respondent’s position that Dr. West’s opinion pertaining to the applicant’s concussive symptoms is outside his scope of practice, I nevertheless agree these symptoms persisted as documented by Dr. West because the applicant’s concussion-related diagnoses were confirmed by two different neurologists—one about five months prior to the applicant’s consultation with Dr. West and the other two months afterwards. I therefore accept the applicant did, in fact, sustain a concussion in the accident.
Did the applicant suffer a complete inability to carry on a normal life as a result of, and within 104 weeks after, the accident?
17The second part of the NEB test at section 12(1) of the Schedule requires the applicant to show she suffers a complete inability to carry on a normal life because of her accident-related impairments. To do so, the Tribunal should undertake a comparison of the applicant’s pre- and post-accident activities per Heath to determine if the impairments continuously prevent the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
18I am not persuaded that the applicant has met her onus on the second part of the test. The appellant’s position is hampered by a lack of submissions and evidence pertaining to her pre-accident activities. Further, her position that she could not return to her activities of a normal life due to her concussive symptoms is unsupported.
19The applicant submits she had to take two months off school following the accident but does not point to evidence that corroborates her missed time or that it falls within the disputed period (i.e., after December 1, 2022). She says she continues to struggle with her studies and will have to attend summer school, which is at odds with the Accessible Learning Centre Form completed in January 2022 by Dr. Osumek. Dr. Osumek indicates on this form that the applicant is not limited in her activities of daily living and can meet the demands of a full course load despite: (1) a one-hour restriction on screen time before needing a “brain rest;” and (2) presenting with a moderate to severe disability on most measures. While I recognize this form was completed 11 months before the applicant’s NEB claim period starts, I give it weight insofar that it corroborates Dr. Osumek’s January 2023 note that the applicant was granted accommodations by the school (i.e., only two of her five classes were online), and that while screen use was still difficult, she was taking notes by hand with pen and paper. Dr. Osumek also notes the applicant achieved an “A” grade average the previous semester, which I take to mean in 2022 after the accident. In my view, this evidence is inconsistent with the “complete inability” the applicant is required to prove. Rather, it shows the applicant was able to continuously engage in her studies with accommodations for screen time, and that she was achieving a high-level of performance after the accident and up to the start of her claim period.
20I placed little weight on Dr. West’s April 2023 opinion that the applicant has been unable to return to pre-accident level of function including social and recreational endeavours. The applicant’s submissions do not relate what her pre-accident social and recreational activities were; do not pinpoint evidence of these activities in her brief; and do not address her pre-accident functionality. While I accept Dr. Basile reports that the applicant has multiple impairments resulting from the accident, I find this evidence does not assist the applicant’s case because I am not pointed to a medical opinion offered by Dr. Basile as to the degree of impairment (i.e., does it continuously prevent the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident?).
21Given the absence of submissions and pinpointed evidence concerning the applicant’s pre-accident life activities, as well as the applicant’s failure to show her accident-related impairments rise to a level of disability consistent with a “complete inability,” I find the applicant has failed to demonstrate she is entitled to an NEB. It is not necessary to address the respondent’s expert evidence because the applicant’s own evidence falls short of proving her case.
The applicant’s entitlement to medical services and occupational therapy services
22I find the applicant has not demonstrated she is entitled to the disputed OCF-18s.
23To receive payment for an OCF-18 under sections 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.
24The applicant does not offer discernable submissions on the reasonableness and necessity of the disputed OCF-18s, other than to say the respondent “refused to fund treatment plans in the amount of $1550.00 and $2200.00. from l scope both submitted November 4, 2022 and both denied on November 9, 2022. These treatment plans were for an Occupational Therapy assessment and treatment.”
25The applicant goes on to cite General Accident Assurance Co. of Canada v. Dominic Violi, 2000 ONFSCDRS 177 (“Violi”) to confirm the generally accepted three-factor test for treatment plan entitlement, as well as a variety of other authorities to show that regardless of how much time has elapsed since the accident pain relief in and of itself can be a legitimate medical and rehabilitative goal, even if it does not promote recovery or the treatment produces diminishing returns. These cases include: (1) Therese West v. Aviva Canada Inc., 2012 ONFSCDRS 6; (2) L.E. v. Allstate Insurance Company of Canada, 2009 ONFSCDRS 145; (3) Lois Kennelly v. Wawanesa Mutual Insurance Company, 2000 ONFSCDRS 13; and (4) F.J. v Intact Insurance Company, 2020 CanLII 34495 ON LAT. I did not review the Federico authority raised by the applicant because I was unable to locate it on using the citation in the applicant’s submissions and because the applicant did not provide copies of any authorities in her brief.
26The respondent argues that Dr. Baskind concluded Botox treatment was not reasonable and necessary because the applicant did not have post-concussion syndrome and there was no ongoing neurological diagnosis. The respondent also argues that Dr. Bhangu concluded an occupational therapy assessment was not reasonable and necessary because the applicant reported she was performing all her pre-accident activities.
27While both parties submit that one of the disputed OCF-18s pertains to an occupational therapy assessment, I note that neither of the issues in dispute agreed to at the case conference specify an occupational therapy assessment. The issues listed in the CCRO pertain to “medical services” and occupational therapy services, both of which are distinguishable from an assessment. To my knowledge, neither party filed a motion to add an OCF-18 for occupational therapy assessment to the proceeding. As such, in my view, an OCF-18 for occupational therapy assessment is not properly before the Tribunal.
28My ability to consider these OCF-18s was further hindered by the applicant’s failure to produce copies as evidence and refer to them in her submissions. The OCF-18s are not listed in the index provided with the applicant’s submissions and I could not find them in her brief. Similarly, the respondent’s index does not list the OCF-18s and I could not locate copies in its brief. For what it’s worth, the respondent did not address the OCF-18 for occupational services in its submissions, instead arguing that an OCF-18 for Botox treatment is not reasonable and necessary. I can only speculate that perhaps the OCF-18 for “medical services” is, in fact, Botox treatment. In any event, the applicant’s submissions do not reference an OCF-18 that involves Botox.
29The applicant’s submissions do not identify the treatment and assessment goals of the disputed OCF-18s, nor the treatment and assessment modalities. As such, I cannot determine if the goals can reasonably be met. Further, the applicant made no submissions on the frequency and duration of the modalities, so I cannot analyze the reasonableness of the costs. Neither the medical evidence led by the applicant, nor the authorities she relies on, can assist in determining whether the OCF-18s are reasonable and necessary because this analysis cannot be completed without at least knowing the goals and types of treatment proposed to treat her injuries. While several of the applicant’s assessors make various treatment recommendations in the reports I reviewed, I cannot possibly ascertain which, if any, of these treatments are proposed in the disputed OCF-18s because they were not put before me for review.
30Without at least establishing the treatment and assessment goals in each OCF-18, as well as the type and quantity of modalities proposed to achieve those goals, the applicant cannot meet her onus to prove the OCF-18s are reasonable and necessary. Therefore, the applicant has not established entitlement to the disputed OCF-18s.
Interest
31Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. No interest is payable because there are no overdue benefits in this case.
ORDER
32The applicant is not entitled to an NEB or the disputed OCF-18s. No interest is payable. The application is dismissed.
Released: March 5, 2025
Michael Beauchesne
Adjudicator```