October 18, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Ms. Rafi and Aviva
Decision Date: September 6, 2017
Heard Before: Adjudicator Marshall Schnapp
Non earner benefits (NEBs): Failure to provide evidence; OCF 3 not submitted; NEBs and other benefits denied.
Ms. Mishal Rafi was injured in two motor car accidents—the first on May 12, 2012 and the second on October 2, 2012—and applied for accident benefits from Aviva but when she was unable to resolve their disputes through mediation Ms. Rafi applied for arbitration at the FSCO.
- Is Ms. Rafi entitled to receive NEBs from November 12, 2013 to the present and ongoing?
- Is Ms. Rafi entitled to the following medical benefits:
- $3,103.00 for chiropractic care;
- $1,918.58 for a psychological treatment; and
- $3,130.00 for manipulation and exercise?
- Is Ms. Rafi entitled to the following cost of examinations:
- $978.50 submitted June 4, 2012;
- $1,300.25 submitted June 29, 2012 for an In-Home Assessment;
- $1,705.22 for an ultrasound submitted July 31, 2012; and
- $1,950.00 submitted September 14, 2012 for Chronic Pain Assessment?
- Is Ms. Rafi is entitled to interest on the amounts outstanding in accordance with the Schedule?
- Ms. Rafi is not entitled to receive a non-earner benefit.
- Ms. Rafi is not entitled to receive the medical benefits being claimed.
- Ms. Rafi is not entitled to the cost of examinations being claimed.
- Ms. Rafi is not entitled to interest for any overdue payments of benefits.
Ms. Rafi provided new evidence with her closing reply submissions on June 2, 2017. The new evidence provided was an OCF-3 dated May 19, 2012. Aviva brought a motion to exclude this OCF-3 due to non-compliance with Rule 39 of the Dispute Resolution Practice Code (the “Code”). Aviva submitted that as the OCF-3 was not admitted into evidence by way of joint agreement, direct evidence, evidence on cross-examination, or by way of redirect examination, in the course of this Arbitration, it was improper to refer to it in reply submissions.
Ms. Rafi’s submissions dealt with the authenticity of the OCF-3 and the fact that Aviva was aware Ms. Rafi elected non-earner benefits. Ms. Rafi submitted that the only error was that the OCF-3 did not make it into the joint document brief.
Based on the facts and submissions from counsel the Arbitrator did not allow the OCF-3 into evidence for this matter as Rule 39 is clear and states documents “must be served on the other party at least 30 days before the first day of the hearing”.
On May 12, 2012, Ms. Rafi was driving to a grocery store with her father it was rear-ended at a red light by a van. Police attended after the accident, but no ambulance was called. On October 2, 2012, Ms. Rafi was driving when a van failed to stop at the stop sign and impacted her car on the passenger side. This pushed her vehicle and she ended up a couple of metres away from a tree.
Ms. Rafi gave her evidence in a straight-forward and direct manner. She came across as a credible witness. Ms. Rafi is 22 was living at home and attending high school at the time of the accident. Ms. Rafi recalls after the accident she was in shock and scared; she and her father gave statements to the police. Ms. Rafi described the following complaints after the accident: her head and neck were hurting right away, her lower and mid-back started hurting throughout the night, and she felt soreness and tight.
Ms. Rafi was involved in a total of 4 motor vehicle accidents: January 28, 2010, May 12, 2012 (subject accident for A14-005621), October 2, 2012 (subject accident for A15-000354), and January 24, 2014. Ms. Rafi submitted that her condition after the January 28, 2010 accident should provide a baseline and evidentiary record of her injuries; this would be the starting point to conduct an analysis of her entitlement to a non-earner benefit, by comparing her activities of daily living at this point to what they were after the May 12, 2012 accident.
When questioned, Ms. Rafi confirmed that after the May 2012 accident she continued high school and graduated in 2013, continued working until August 2013, began college in September 2013, stopped treatment in December 2013, moved out of her family home, and lived on her own in January 2014, where she took on more limited housekeeping responsibilities, became more independent with personal care, returned to some driving, took public transit, took on a new job at Winners (where she worked for 22 months), retuned to Humber College in 2015, began a relationship, got married in 2016, and began living with her husband and his family.
Ms. Rafi testified that she had difficulty attending mosque after the January 2010. She describes the difficulty as the prayers require physical activity, and being at mosque means being around a lot of people. She maintains her schooling suffered, she was on academic probation, her family and social relationships deteriorated, she had anxiety about driving, and she was limited in her ability to help around the home.
Counsel noted that Ms. Rafi checked off ADD (Attention Deficit Disorder) or ADHD (Attention Deficit Hyperactivity Disorder) in her Learning Services File but she could not remember why she put it down as her disability. She agreed the form noted that her depression started after May 2010.
With respect to causation, Ms. Rafi submitted she is not required to prove that the accident was the only cause of her injuries, but only required to prove the accident significantly contributed to an impairment that "continuously prevents" her from engaging in substantially all activities in which she ordinarily engaged before the accident. According to Ms. Rafi, she suffered impairments; otherwise Aviva would not have paid for treatment. Ms. Rafi submitted that her evidence shows her condition became progressively worse after each accident, as a result of her injuries and the resulting cumulative impact on her life.
Ms. Rafi submitted her prior consistent statements made to multiple assessors should help assess her credibility. Ms. Rafi believes it is important to note her evidence that she improved to a point after her 2010 accident and had it not been for the May 12, 2012 accident she would have resumed her life and achieved her goals. In 2015, assessors for Aviva recommended ongoing psychological and psycho-educational assistance for the 2012 accident which was consequently funded.
In support of the non-earner benefit, Ms. Rafi provided a doctor’s assessment from 2016 stating:
her current psychological problems are accumulative results of her four accidents… she suffered from pre-existed psychological problems that exacerbated her symptoms during her fourth, index accident……adjustment disorder with mixed anxiety and depressed mood (exacerbated by the index accident), Severe post-traumatic stress disorder (exacerbated by the index accident) and Cognitive Disorder…Ms. Rafi does suffer a complete inability to carry on a normal life as a direct result of the subject accident from a psychological viewpoint.
Ms. Rafi submitted she meets the test for the May 12, 2012 accident, and that it was a cumulative effect of all accidents that resulted in her current situation. Ms. Rafi took the position that the May 12, 2012 accident prevented her from going to university—she never received the marks required for university and went to college. Further, Ms. Rafi argues, as a result of the accidents in January 2010, May 2012 and October 2012, her ability to achieve a successful college education was impacted.
Ms. Rafi noted that to date she is not employed, has not completed her college education, is on probation, on student disability, is living with her husband's family in a basement apartment, and her husband and in-laws take care of all the household duties.
Further, consistent with previous decisions D.S. and Certas and Hasan and Allstate, it is Ms. Rafi’s position that there is no requirement for a Disability Certificate to be completed for an Applicant to obtain the non-earner benefit. An insurer cannot simply rely on an OCF-3 as the entire basis for its denial. It must look at the total context of the situation and evidence presented to it. Its role is to continually adjust the file in a fair and even handed manner.
Aviva submitted that Ms. Rafi does not meet the stringent test for the non-earner benefit, and she has not proven on a balance of probabilities that the cost of exams and treatment plans in dispute are reasonable, necessary and incurred, and that these claims arise out of the May 12, 2012 accident. It is important to differentiate the very limited effects from this accident from those sustained in the very serious 2010 MVA, as well as those sustained in the accidents of October 2, 2012 and January 24, 2014. The claim for non-earner benefits requires a comparison of Ms. Rafi’s activities before and after the May 12, 2012 accident. According to Aviva, Ms. Rafi was significantly limited prior to the May 12, 2012 accident, and aside from some initial setback, she has fared quite well since.
Aviva also relies on s. 36(3) of the Schedule, which states that an applicant who fails to submit a completed Disability Certificate is not entitled to a specified benefit for any period before the completed Disability Certificate is submitted. Ms. Rafi failed to submit a Disability Certificate pertaining to the May 12, 2012 accident, despite requests and in the face of warnings regarding suspension of benefits, and pursuant to section 36(3) of the Schedule, she is precluded from receiving a non-earner benefit.
Regarding the alternative argument, Ms. Rafi was in a very serious MVA on January 24, 2010, which left her permanently and seriously impaired. Her pre-May 2012 accident trajectory did not include attaining a GPA suitable for entry to university, then law school, and then the Bar. The evidence was clear that the 2010 accident made such a trajectory impossible.
Aviva submitted that the evidence showed after the May 2012 accident Ms. Rafi working, driving, graduated high school, and started college in September 2013. She stopped physical and emotional treatment in December 2013. She moved out on her own in January 2014, and took on more of the housekeeping and became independent with her personal care. She took public transportation to school. In April 2014, she took on a new job at Winners, and stayed there for 22 months. She did not seek accommodations at school until 2015. She began a romantic relationship in 2015 and was married in July 2016 when she moved in with her new family that same month. She went to the Dominican Republic in August 2016. She now shares close relationships with her parents, sister-in-law and niece. She lives in a stable home with her husband and her in-laws.
Aviva submitted on the totality of the evidence, Ms. Rafi has failed to prove, on a balance of probabilities, that she suffered a complete inability to carry on a normal life as a result of the May 12, 2012 accident.
The Arbitrator reviewed all of the medical evidence, the law and the testimony and determined that Ms. Rafi is not entitled to a non-earner benefit due to her failure to submit a Disability Certificate pertaining to the May 12, 2012 accident. The Arbitrator noted that although Ms. Rafi has been under treatment for 5 years, not one of her health care practitioners has completed an OCF-3 or made the finding in a report that Ms. Rafi suffered a complete inability to carry on a normal life as a result of the May 12, 2012 accident. Ms. Rafi did not prove on a balance of probabilities that she suffered a complete inability to carry on a normal life as a result of the May 12, 2012 accident.
After the May 12, 2012 accident, she continued to carry on a normal life and engage in almost all of the same activities she was doing prior to the accident. The evidence shows Ms. Rafi continued attending school and working part-time, continued to drive, graduated high school and started college in 2013, moved out on her own in January 2014, took on a new job at Winners and stayed there for 22 months, began a romantic relationship in 2015, and was married and moved in with her new family in July 2016.
Ms. Rafi did not provide any specific evidence relating to any of the medical benefits and cost of examinations in dispute. Ms. Rafi indicated that she stopped going to treatment when Aviva stopped funding it, and testified that she would like more treatment. Ms. Rafi failed to establish the reasonableness and necessity of the disputed exams and treatment, and has not met the onus of establishing that the disputed benefits are reasonable and necessary.