Licence Appeal Tribunal File Number: 22-013913/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:
Wayne J. Quigley
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Filipe Santos, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wayne Quigley, the applicant, was involved in an automobile accident on December 19, 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, Security National 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 (“NEB”) of $185.00 per week from July 4, 2021, to date and ongoing?
ii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from September 29, 2021, to date and ongoing?
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
3The applicant is not entitled to a NEB, attendant care benefits, or interest. The respondent is not liable to pay an award. This application is dismissed.
ANALYSIS
Non-Earner Benefit
4I find that the applicant is not entitled to a NEB.
5Section 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.
6The applicant submits that he is entitled to a NEB because the respondent did not provide medical and any other reasons for the decision to terminate the NEB in accordance with s. 37(6) of the Schedule. He argues that the denial letter of June 23, 2021, was not proper, and therefore he is entitled to NEB payments from the date the respondent received the completed disability certificate to date.
7The denial letter quoted paragraphs from three s. 44 assessment reports as the explanation for why the applicant was not entitled to the benefit. The respondent also enclosed copies of the reports. The quoted paragraphs included opinions from each assessor that the applicant did not suffer a complete inability to carry on a normal life. The applicant argues that the notice letter failed to cite medically-related conclusions, diagnoses, or reasons contained in each of the reports.
8I find that quoting the assessors’ opinions that the applicant did not suffer from a complete inability to carry on a normal life, and appending the reports to the letter, constituted the provision of medical reasons. There is no requirement in the Schedule that the letter must contain specific types of quotes from s. 44 assessments for the requirement to provide medical reasons to be satisfied, and the applicant has not directed me to any authority for this proposition. According to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373, relied upon by the applicant, an insurer’s “medical and any other reasons” should include specific details about the applicant’s condition forming the basis for the insurer’s decision, and the reasons should be clear and sufficient such that an unsophisticated person can make an informed decision to either accept or dispute the decision at issue. The s. 44 reports themselves contained specific details about the applicant’s condition, and the reports were appended to the notice letter and directly referred to by the respondent. Ultimately, I find that the assessors’ opinions quoted in the letter and the information contained in the reports themselves constituted clear and sufficient medical reasons such that the applicant would have been able to make an informed decision to accept or dispute the denial. I accordingly find that the respondent’s notice letter was compliant with s. 37(6).
9The applicant also submits that he is entitled to an NEB for substantive reasons. For the following reasons, I disagree.
10The applicant’s chiropractor, Dr. Samuel Johnson, completed disability certificates on December 28, 2020, and April 15, 2021, and checked the box indicating that the applicant suffered a complete inability to carry on a normal life. However, there are no details provided in these forms with respect to the applicant’s pre-accident activities and how they were impacted by this accident. I am not persuaded by these documents on their own without further compelling evidence regarding the applicant’s restrictions.
11The applicant relies on the reports of Natalya Khramtsova, registered nurse, from an assessment on August 30, 2021, and Dr. Konstantinos Papazoglou, psychologist, from an assessment on October 6, 2021. I note that although Ms. Khramtsova recommended that the applicant receive attendant care assistance, she did not opine on whether the applicant sustained a complete inability to carry on a normal life. Further, Dr. Papazoglou stated that the applicant’s symptoms prevent him from engaging in most of the activities in which he was ordinarily engaged before the accident, although he did not go as far as to say that he was completely unable to carry on a normal life or that he was continuously prevented from engaging in substantially all of his pre-accident activities.
12In any event, I place little weight on the report of Ms. Khramtsova. Despite acknowledging that at the time of the accident the applicant was receiving disability benefits and had a number of pre-existing health conditions, Ms. Khramtsova did not mention whether any of these conditions were responsible for his reported difficulties as opposed to his injuries from the accident. The evidence before me is that the applicant was suffering from chronic pain and had been taking Percocet since at least 2018. He was also involved in an e-bike accident in September 2020 that resulted in a fracture to his left fibula. He had also suffered a stroke, underwent aortic valve replacement surgery, and had frontal lobe dementia. Further, the applicant was receiving assistance from a personal support worker prior to the accident, which was not mentioned by Ms. Khramtsova.
13Additionally, Ms. Khramtsova’s report lacked detail with respect to the extent of the applicant’s difficulties with his pre-accident activities. For each task, she provides virtually identical and vague reasons for her opinion that the applicant should receive assistance. Due to this lack of detail, I do not find Ms. Khramtsova’s report persuasive in establishing that the applicant meets the test for a NEB.
14I also place little weight on Dr. Papazoglou’s report. Firstly, Dr. Papazoglou’s report contains a number of inaccuracies. He indicated that the applicant has no children, when the evidence before me is that he has three children, including a son who was caring for him after the September 2020 accident. Dr. Papazoglou noted that the applicant was not taking any medications, when the records from the applicant’s family physician indicate that he was taking a number of medications including Percocet before and after the accident. He notes that the applicant was not in a romantic relationship, but later in his report writes that he had been more distant from his spouse.
15Secondly, Dr. Papazoglou indicated that “from a purely psychological perspective”, the applicant’s symptoms prevent him from engaging in most of the activities in which he was ordinarily engaged before the accident, such as cooking, doing laundry, and getting groceries. However, he did not provide an explanation as to why the applicant’s psychological difficulties were the cause of this lack of engagement, as opposed to any physical difficulties, and he did not delve into this in any particular detail. Importantly, he did not mention the applicant’s previous e-bike accident in September 2020, pre-existing chronic pain issues, or injuries sustained in a subsequent e-bike accident that occurred approximately one month prior to his assessment. He did not engage in an analysis as to what activities were made difficult by the subject accident as opposed to the applicant’s other injuries or health conditions. I am accordingly not persuaded by Dr. Papazoglou’s findings.
16The respondent relies on the s. 44 reports of Dr. Todd Levy, general practitioner, Dr. Kelly McCutcheon, psychologist, and Justin Moy, occupational therapist. All three assessors opined that the applicant did not suffer from a complete inability to carry on a normal life.
17The applicant reported to Dr. Levy that he was independent in his personal care activities, and was independent in his housekeeping and homemaking duties, albeit with some modifications. He reported walking outdoors daily for 30-60 minutes and riding his e-bike. The applicant reported to Mr. Moy that he was independent with mobility, bathtub transfers, dressing/undressing, grooming, and bathing, and that he continued to complete his pre-accident housekeeping tasks with difficulty due to pain. He was also independent with taking his laundry to the laundromat and performing light grocery shopping. He reportedly had difficulty with transfers, but denied the need for a mobility aid. The applicant advised Dr. McCutcheon that prior to the accident, he had the assistance of a personal support worker once every three days who helped him with some housekeeping and personal care tasks. As of May 31, 2021, the date of the assessment with Dr. McCutcheon, the personal support worker only visited once per week to assist with showering and dressing. In my view, the applicant’s reported difficulties to the s. 44 assessors do not depict someone who is prevented from engaging in substantially all of his pre-accident activities.
18The applicant points out that Dr. Levy did not review any pre-accident medical records in completing his report. Considering the applicant’s medical history and his fibula fracture a few months prior to the accident, I agree with the applicant that it would have been preferable for Dr. Levy to have reviewed his pre-accident medical records instead of relying on his self-reporting. However, it does not appear that Ms. Khramtsova or Dr. Papazoglou reviewed any pre-accident medical records either. The applicant bears the burden of proof, and that burden is not met by simply pointing out the flaws of the s. 44 reports where he has not furnished persuasive evidence in support of his entitlement to the benefit.
19The applicant submits that his limited recall of events, different descriptions of his pre-accident history to different assessors, and being described as a “vague historian” by practitioners indicates that his pre-existing cognitive difficulties were exacerbated by a head injury that he may have received during the accident. Submissions are not evidence, and the applicant has not furnished any compelling evidence that he sustained a head injury in the accident. I accordingly do not accept this submission.
20The applicant also submits that, while his evidence to various assessors was not always consistent, he consistently described his pre-accident life as one with no restrictions with respect to his activities of daily living, housekeeping, and self-care responsibilities. Considering that the applicant received assistance from a personal support worker every three days prior to the accident, I do not accept this assertion to be accurate. Further, the applicant points out that he reported to Mr. Moy that he used to work, and he used to race with “racing buddies”. However, it appears that the applicant was describing a time in the relatively distant past, given that he had not worked for approximately 10 years prior to the accident. There is no other evidence before me as to whether the applicant was still racing with friends in the months or even the few years prior to the accident. In fact, there is a lack of compelling information before me as to what the applicant’s leisure activities were and how the injuries from this accident in particular affected his ability to participate in them.
21The applicant notes that, although he continued to ride his e-bike after the accident, he was involved in a subsequent accident and was told to refrain from further operation. He argues that this speaks to an inability to manoeuvre on his e-bike. There is no evidence before me that the accident caused the applicant to suffer further e-bike accidents, or that his injuries from the accident were what caused his healthcare professionals to question whether he should be riding an e-bike, as opposed to his other unrelated health conditions. I accordingly do not accept this submission.
22Ultimately, I find that the applicant has not met his burden of proving that he suffers from a complete inability to carry on a normal life as a result of the accident. He is accordingly not entitled to the NEB in dispute.
Attendant Care
23I find that the applicant is not entitled to attendant care benefits.
24Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
25The applicant relies on the report of Ms. Khramtsova discussed above, wherein she recommended that he receive $3,430.38 per month in attendant care benefits. The respondent relies on the report of occupational therapist Arash Sasani, dated May 12, 2022. Mr. Sasani opined that the applicant demonstrated independence with all tasks and therefore does not require any attendant care.
26The applicant submits that Mr. Sasani’s report does not provide an accurate description of his day-to-day activities, as he relies on the applicant’s self-reporting. I find that this argument does not assist the applicant. Mr. Sasani’s report included physical testing and observations from a functional assessment, in addition to the applicant’s self-reporting. I note that this was similar to the type of testing and information relied upon by Ms. Khramtsova. Even if I am not persuaded by Mr. Sasani’s report, I also afford little weight to Ms. Khramtsova’s report for the reasons I indicated above. It is incumbent on the applicant to provide evidence of his attendant care needs. Acknowledging that his self-reporting to various assessors differs and is not necessarily reliable does not assist him in proving what his actual attendant care needs are.
27According to what the applicant advised Dr. McCutcheon, he received government-funded personal support services prior to the accident. There is a lack of information before me as to whether the personal support services provided after the accident were the same as before, or for how long those services were provided. Without further information, I am not convinced that any assistance that was or may still be required by the applicant is due to the accident.
28The applicant relies on Powell v. Aviva Insurance, 2022 CanLII 16914. In that case, the Tribunal found that the insured was entitled to attendant care benefits and preferred a s. 25 report over a s. 44 report, as the s. 25 report was more consistent with evidence from multiple witnesses during the hearing. Not only is that case not binding on me, I also find it to be distinguishable. Despite his acknowledgement that his self-reporting should not be relied upon, the applicant has not provided witness statements or compelling evidence from treatment providers that he requires assistance with his activities of daily life.
29I find that there is a lack of compelling evidence before me to corroborate the report and Form-1 of Ms. Khramtsova, and on a balance of probabilities, I am not persuaded that the applicant requires attendant care services as a result of the accident.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that none of the benefits in dispute are overdue, it follows that no interest is payable.
Award
31The 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. Having found that the applicant is not entitled to the benefits claimed, it follows that no benefits were unreasonably withheld or delayed. Accordingly, I find that the respondent is not liable to pay an award.
ORDER
32The applicant is not entitled to a NEB, attendant care benefits, or interest. The respondent is not liable to pay an award. This application is dismissed.
Released: January 29, 2025
Rachel Levitsky
Adjudicator
