Licence Appeal Tribunal File Number: 22-014032/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:
Carrie Wildman
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Tina D. Radimisis, Counsel
For the Respondent: Stephen Whibbs, Counsel
HEARD: By way of written submissions
OVERVIEW
1Carrie Wildman (“the Applicant”) was involved in an automobile accident on December 17, 2019, and sought benefits from Economical Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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.
PRELIMINARY ISSUES
3The preliminary issue in dispute is:
i. Is the Applicant barred from proceeding to a hearing for a non-earner benefit because she never disputed the denial within the two-year limitation period?
ISSUES
4The issues in dispute are:
i. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week, for the period from January 17, 2019 to December 14, 2021?
ii. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?
iii. Is the Applicant entitled to a medical benefit in the amount of $3,099.29 for a physiotherapy treatment plan proposed by Propel Physiotherapy, dated July 22, 2022?
iv. Is the Applicant entitled to a medical benefit in the amount of $18,532.00, less $14,012.00 approved by the Respondent, for a catastrophic impairment assessment treatment plan proposed by Propel Physiotherapy, dated January 26, 2023?
v. Is the Applicant entitled to a medical benefit in the amount of $6,586.31 for an occupational therapy treatment plan proposed by Lisa McGowan Occupational Therapy Professional Corporation, dated September 22, 2022?
vi. Is the Applicant entitled to a medical benefit in the amount of $1,100.05 for a physiotherapy treatment plan proposed by Lisa McGowan Occupational Therapy Professional Corporation, dated November 4, 2022?
vii. Is the Applicant entitled to a medical benefit in the amount of $3,029.25 for an in-home assessment plan proposed by Access Rehabilitation, dated March 17, 2023?
viii. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5I find that the Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.
6The Applicant is not entitled to NEBs for the period from January 17, 2019 to December 14, 2021 (“the relevant period”). I need not determine the preliminary issue in light of this finding.
7The Applicant is not entitled to the treatment and assessment plans in dispute because the plans propose goods and services that fall outside of the MIG and the $3,500.00 funding limit for a minor injury.
8No interest or award is payable.
BACKGROUND
9The Applicant was the driver of a vehicle which was struck from behind while slowing down as it approached a rural intersection. The collision report from the accident lists no injuries to any occupant of either vehicle.
10The Applicant attended at the hospital later that day and was x-rayed. X-ray reports show no apparent fracture or sequelae from the recent trauma. The Applicant later met with a practitioner at a family health team office on January 10, 2020 and was noted to be asymptomatic with no bruising and no palpable masses. The healthcare provider queried whether the Applicant sustained a seatbelt injury but, otherwise, the visit is dominated by a discission regarding the Applicant’s workplace disability provider. There is nothing in the January 10, 2020 entry that indicates that the Applicant sustained a concussion in the accident – there is no diagnosis of a concussion and no reports of concussion symptoms such as headaches of sensitivity to light and/or sound. Further, no referral to therapy resulted from this visit.
11The Applicant went to the family health team’s office again on January 27, 2020, and reported for the first time, hitting her head in the accident and suffering from an exacerbation of her headaches following the accident. However, no diagnosis resulted from this visit, no referral to therapy was made, and it appears that the treating practitioner was overall dismissive of the Applicant’s accident-related symptoms.
12The Applicant’s medical history is significant for a traumatic brain injury sustained in an accident in 2006 and another automobile accident on April 14, 2018. According to nurse practitioner R. VanHoof, who in a letter of advocacy to the Applicant’s auto insurer from the 2018 accident, dated May 2, 2019, noted that the Applicant had a deterioration in her ability to manage her Activities of Daily Living (“ADLs”), keep up with her work and care for her home, and relies on the assistance of her mother to help her care for her daughter. The letter also highlights that the Applicant is experiencing many issues, including headaches and chronic neck pain. This pattern continues in the Applicant’s physiotherapy records, which note that the service provider isn’t sure how to help the Applicant anymore – the Applicant was noted to enter the pool for therapy, but did not engage in treatment, and cried instead. Further, the Applicant was on leave from work for health reasons at the time of the accident and started psychotherapy about a week prior to the subject accident.
13The Applicant claims that she sustained a concussion, chronic pain, and depression as a result of the accident. She submits that she should not be subject to the MIG and is entitled to NEBs as a result of the accident.
ANALYSIS
14The onus is on the Applicant to demonstrate entitlement to the benefits claimed. For the medical and rehabilitation benefits, she must demonstrate that the plans are reasonable and necessary as a result of the accident. To be entitled to NEBs, she must demonstrate a complete inability to carry on a normal life as a result of the accident.
Non-Earner Benefits (NEBs)
15I find that the Applicant has failed to meet her burden to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident.
16Pursuant 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 Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, 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.
17Central to the dispute, I note that the Applicant has not provided a disability certificate in support of her claim for NEBs during the relevant period. The disability certificate completed by nurse practitioner R. VanHoof, dated February 14, 2020, does not endorse a claim for NEBs. The disability certificate has a section to complete that asks whether the Applicant suffers a complete inability to carry on a normal life, and nurse practitioner VanHoof documented that the Applicant did not suffer a complete inability to carry on a normal life. The document does include a hand-written note which states that the Applicant can meet basic needs but has significant problems with concentration and performing tasks in a timely manner. The disability certificate completed by occupational therapist L. McGowan, dated March 20, 2023 post-dates the period of claim by more than a year. Thus, it has virtually no probative value when determining whether the Applicant suffers a complete inability to carry on a normal life during the period from January 17, 2019 to December 14, 2021. The March 20, 2023 disability certificate includes no notes to consider whether it applies retroactively. The Applicant’s inability to produce a disability certificate in support of her claim for NEBs critically undermines her claim.
18The Applicant has not demonstrated that she suffers a complete inability to carry on a normal life as a result of the subject accident and her submissions on the issue are misleading. The Applicant submits that she was working in a well-paying job prior to the accident and was independent of her activities of daily living, housekeeping and home maintenance, was not restricted in any way, and never received any psychological or psychiatric treatment until immediately before the accident. However, as noted in occupational therapist VanHoof’s letter, dated May 2, 2019, the Applicant’s ability to manage her ADLs and her reliance on others pre-dates the accident. Additionally, according to the other medical records, the Applicant was off work at the time of the accident, due to ongoing chronic pain and concentration issues relating to her 2005 and 2018 accidents, and had started psychotherapy in relation to injuries sustained in those accidents.
19There is no discernible difference between the Applicant’s life prior to the accident and during the relevant period. The Applicant was not working at the time of the accident, and remained off work thereafter. She started psychotherapy prior to the accident and the counselling records, although difficult to read, do not appear to connect the Applicant’s symptoms to the subject accident. It cannot be said that continuing to attend therapy, be it physical or psychological, equates to suffering a complete inability to carry on a normal life.
20Having found virtually no difference in the Applicant’s life post-accident life, when compared to her pre-accident life, it follows that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Thus, she is not entitled to NEBs.
A determination on the preliminary issue is unnecessary
21Having determined the Applicant’s entitlement to NEBs on the merits, it follows that an analysis on whether she disputed her entitlement to the benefit within the applicable timeframe is unnecessary.
The Minor Injury Guideline is an issue in dispute
22I find that the characterization of the Applicant’s injuries is an issue in dispute, despite it not being listed in the Case Conference Report and Order (“CCRO”).
23The Applicant made initial submissions regarding the applicability of the MIG. In response, the Respondent submits that the characterization of the Applicant’s injuries is not in dispute because it was not listed in the CCRO. Its position is that the omission of the issue in the CCRO indicates that the Applicant chose not to dispute the issue.
24I disagree with the Respondent and find that the characterization of the Applicant’s injuries is properly before me. The Respondent is a sophisticated litigant to this dispute and is aware that the Applicant must demonstrate that she suffered a non-minor injury as a result of the accident to be entitled to the treatment and assessment plans in dispute. There is no prejudice to the Respondent in defending its position on the characterization of the Applicant’s injuries because it conducted insurer’s examinations (“IEs”) and denied entitlement to the treatment and assessment plans in dispute on this basis.
The Applicant is subject to the Minor Injury Guideline (“MIG”)
25The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
26The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. Alternatively, she would not be subject to the MIG if she has a documented pre-existing injury which would preclude her recovery from accident-related injuries if subject to the MIG.
27For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
The Applicant’s pre-existing impairments do not preclude maximal recovery in the MIG
28I find that the Applicant’s pre-existing health condition does not preclude her maximal recovery from predominantly soft-tissue injuries.
29As noted, the Applicant’s health history is significant for a traumatic brain injury in 2006 with associated sequalae that was ongoing at the time leading up to and at the time of the accident. She was on leave from work at the time of the accident due to these impairments. On April 14, 2018, she was involved in a motor vehicle accident that exacerbated her pre-existing injuries, causing her to engage in physiotherapy and psychotherapy.
30Despite her pre-existing impairments, which are significant, I find that the Applicant has not demonstrated that her pre-existing health condition precludes her maximal recovery from her accident-related injuries. As noted at the outset, the Applicant never sustained a fracture in the subject accident. Her medical records immediately proceeding the accident include soft-tissue injuries reported and the health practitioner never made a diagnosis other than to query whether the Applicant sustained a seatbelt injury. The disability certificate completed by nurse practitioner R. VanHoof, dated May 3, 2019, states that the Applicant had a previous head injury and was on accommodations by her employer, but does not indicate that the Applicant has a pre-existing condition which precludes her maximal recovery if subject to the MIG. Otherwise, the Applicant has led no evidence for which I can find that her pre-existing condition would preclude her maximal recovery from predominantly soft tissue injuries.
31In addition, I note that the Applicant’s physiotherapy and psychotherapy records include no treatment modifications following the subject accident. From this, I conclude that the Applicant’s pre-existing health condition had no impact on her ability to recovery from accident-related injuries if subject to the MIG.
Concussion
32I find no persuasive evidence demonstrating that the applicant sustained a concussion as a result of the subject accident.
33As noted, the Applicant did not initially report hitting her head in the accident, and never reported any concussion symptoms at her first follow-up visit with a family health team, about a month after the accident. I find the records immediately following the accident to hold the most weight when assessing whether the Applicant sustained a concussion in the accident because immediately following the accident is primarily when symptoms appear and when the Applicant’s memory of the mechanism of the accident is most accurate. Nothing in these records during this acute period cause me to conclude that the Applicant sustained a concussion as a result of the accident.
34Specifically, the CNRs from the hospital the Applicant attended at immediately following the accident and her family health team include no indication of a concussion or concussion-like symptoms immediately following the accident. There is no mention of a head injury or headaches in the CNRs from the hospital she visited following the accident. The CNRs of the family health team, from the Applicant’s visit on January 10, 2020, note that the Applicant is asymptomatic, no bruising, and no palpable masses. The health practitioner who met with the Applicant queried whether the Applicant suffered a seatbelt injury but there is no mention of concussion or concussion symptoms. Concussion symptoms were first indicated by the Applicant’s legal representatives on January 24, 2020, when they contacted the clinic regarding a disability certificate and inquired whether the Applicant exacerbated her pre-existing head injury. Then, following that call, the Applicant visited the clinic on January 27, 2020, and reported that she hit her head on the headrest in the accident and now suffers from frontal headaches and intermittent right ear pain. The health care provider diagnosed the Applicant with a recurrent head injury and an exacerbation of concussion symptoms. To me, an exacerbation of concussion symptoms is not equivalent to sustaining a concussion. Despite this, nurse practitioner VanHoof diagnosed the Applicant with a concussion as a result of the accident, in the OCF-3, dated February 14, 2020.
35I find that the OCF-3 by nurse practitioner VanHoof, dated February 14, 2020, holds no weight when assessing the Applicant’s accident-related injuries. The document lists concussion as the one and only injury sustained in the accident. Yet, as discussed, the evidence does not demonstrate that the Applicant sustained a concussion in the accident, and it was only raised after requested by the Applicant’s legal office. The 2020 OCF-3 is virtually identical to the one produced for the April 14, 2018 accident, which also lists concussion as the one and only injury, despite the Applicant reporting sprain and strain injuries. It appears that nurse practitioner VanHoof has a history of advocating for increased treatments for the Applicant, without a diagnosis as a basis. Another such example occurred after the Applicant’s 2018 accident, when nurse practitioner VanHoof wrote to the Applicant’s auto insurer outlining the Applicant’s susceptibility to further concussions and implied such was the case for the 2018 accident, yet the family health team CNRs do not include a diagnosis of concussion from the 2018 accident, other than in an OCF-3, dated May 3, 2019.
36It cannot be said that the Applicant sustained a concussion as a result of the accident and having sustained an exacerbation of pre-existing concussion symptoms does not demonstrate that the Applicant sustained a concussion in this minor collision.
Chronic pain and psychological injuries pre-date the accident
37I find that the Applicant’s chronic pain and psychological injuries pre-dated the subject accident and that she does not suffer from these issues as a result of the accident.
38The Applicant’s medical record clearly demonstrates that her psychological and chronic pain complaints pre-date the subject accident, as outlined earlier. She was diagnosed with chronic pain and psychological injuries as a result of her 2005 and 2018 accidents and was seeking physiotherapy and psychotherapy treatment at the time of the subject accident. There was no change in her care or presentation following the subject accident and her condition has not deteriorated at a rate higher than prior to the accident. At most, the report of Dr. J. Hamilton, neuropsychologist, dated January 31, 2023, finds an exacerbation of pre-existing psychological issues, but clearly attributes the Applicant’s current presentation to the 2018 accident. However, this does not cause me to conclude that the Applicant sustained a psychological injury as a result of the accident because there is virtually no mention of the 2019 accident in her psychotherapy records – suggesting that the subject accident had no meaningful impact on her psychological state.
Paying for the catastrophic impairment assessments does not concede the minor injury determination
39The Applicant suggests that she is not subject to the MIG because the Respondent provided funding for catastrophic impairment assessments. For the following reasons, I find that it does not have that effect and instead is a matter of adjusting the Applicant’s claim.
40The Applicant sought funding for catastrophic impairment assessments, and the Respondent approved funding for same, subject to the $2,000.00 funding limit for each modality, and ancillary fees. To the Applicant, this is a concession that she sustained injuries that fall outside the minor injury definition. I disagree.
41The funding for catastrophic impairment assessments is separate from and not calculated against the Applicants medical and rehabilitation benefit limits. As a result, I find that approving the assessments, subject to the funding limits for any one assessment, is not a concession regarding the characterization of the Applicant’s injuries. To me, the Respondent is exercising good faith adjusting by funding the catastrophic impairment assessments. Although, I note that it was likely unnecessary for the Respondent to fund the assessments in light of the other evidence, and the jurisprudence in Johnson v. Co-operators General Insurance Company, 2024 CanLII 49023 (ON LAT), which was released after submissions were made for this hearing. Moreover, the approval of funding for the catastrophic impairment assessments gives the Applicant the benefit of the doubt and the opportunity to explore the extent of her injuries from the subject accident. As assessments are speculative in nature, it is entirely possible that the report from the assessment finds that the Applicant’s injuries from the subject accident were minor and had no contribution to her current presentation.
Interest
42Interest 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 are overdue, and no interest is payable.
Award
43The 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.
44The Applicant submits that the Respondent unreasonably withheld payment of treatment plans and the catastrophic impairment report costs, and that this gives rise to an award. She did not specify the amount of award sought. The Respondent submits that there is no basis for an award and suggests that there is no evidence indicating that it acted unreasonably. In reply, the Applicant raised a new argument, submitted that the Respondent unreasonably withheld her NEBs because it failed to conduct any IEs in relation to the benefit.
45I find that the Applicant is engaging in “case-splitting” and strike her reply submissions on the issue as a result. The Applicant ought to have used her initial submissions to raise her argument pertaining to the Respondent not conducting any IEs in response to her claim for NEBs. This position taken by the Applicant in reply is not based on any of the Respondent’s submissions, but are used instead to bolster her case, and leave the Respondent without an opportunity to refute the argument. Permitting the submissions in reply would be procedurally unfair to the Respondent and is not permitted.
46In any event, the Applicant has not demonstrated that the Respondent’s actions or inactions led to the unreasonable withholding or delayed payment of benefits. The threshold for an award is high and must include a finding that the Respondent’s behaviour was imprudent, inflexible, and immoderate when adjusting the claim. Here, the Applicant has not identified any such behaviour other than disagreeing with the Respondent’s adjusting of the claim. Accordingly, I find that the Applicant has not demonstrated that she is entitled to an award.
CONCLUSION AND ORDER
47The Applicant has not demonstrated that she suffers from a complete inability to carry on a normal life as a result of the accident. Thus, she is not entitled to NEBs.
48The Applicant sustained a minor injury as a result of the accident. As a result, she is subject to the MIG and the $3,500.00 funding limit for a minor injury.
49The treatment and assessment plans in dispute propose goods and services that fall outside of the MIG and the funding limit. The Applicant is not entitled to any of the treatment and assessment plans because she is subject to the MIG.
50No interest and no award is payable.
Released: January 28, 2025
Brian Norris
Adjudicator