Neutral Citation: 2018 ONFSCDRS 11

FSCO A15-007325

BETWEEN:

ANDRE NEWLAND

Applicant

and

AVIVA CANADA INC.

Insurer

DECISION

Before: Lynda Tanaka, Arbitrator

Heard: In person at ADR Chambers on November 8, 9 and 10, 2017

Appearances: Mr. Andre Newland participated Daniel Lee, counsel for the Applicant Robert Rogers and Leanne Zabudsky, counsel for Aviva Canada Inc.

Issues:

The Applicant, Andre Newland (“Applicant”), was injured in a motor vehicle accident on October 25, 2013 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and the Applicant, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended.

The issues in this Arbitration are:

Is the Applicant entitled to receive a non-earner benefit of $185.00 per week commencing April 25, 2014 to date and ongoing?
Is the Applicant entitled to interest for overdue payment of benefits?
Is either party entitled to its expenses of the Arbitration?

Result:

The Applicant is not entitled to receive a non-earner benefit of $185.00 per week commencing April 25, 2014 to date and ongoing.
The Applicant is not entitled to interest for overdue payment of the non-earner benefits in dispute.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

LEGISLATION AND CASE LAW

There is no dispute between the parties as to the relevant legislative provisions or the tests to be met. The Schedule provides for the payment of non-earner benefits under s. 12 (1) 2., where:

The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident…

Under s. 12(4) of the Schedule, a person suffers a complete inability to carry on a normal life “if, and only if, as a result of the accident, the person sustains 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 benefit is not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life.

Both parties rely on the decision of the Ontario Court of Appeal Heath v. Economical Mutual Insurance Co.² At paragraph 50 the Court sets out general principles as being part of a proper approach to the test for non-earner benefits. The Court held that the starting point for the analysis is to compare the Applicant’s activities and life circumstances before the accident to his activities and life circumstances after the accident. This comparison requires more than a snap-shot of the Applicant’s life in the time frame immediately preceding the accident but involves an assessment of the activities and circumstances over a reasonable period prior to the accident. Normally all the pre-accident activities in which the Applicant ordinarily engaged should be considered but greater weight may be assigned to those activities which the Applicant identifies as being important to his pre-accident life.

It is not sufficient for the Applicant to demonstrate that there were changes in his post-accident life, but rather to establish that those changes amounted to his being continuously prevented from engaging in substantially all of his pre-accident activities. It is the Applicant who must prove the incapacity of the requisite nature, extent or degree which is and remains uninterrupted.

The phrase in the statute “engaging in” activities means more than isolated post-accident attempts to perform pre-accident activities. The manner in which an activity is performed and the quality of performance must also be considered. If the degree of participation is sufficiently restricted, or the Applicant is merely going through the motions, then it cannot be said that he is truly participating.

If the primary factor preventing the Applicant from engaging in his former activities is pain, the question is not whether the Applicant can physically do these activities but whether the degree of pain experienced either at the time or subsequent to the activity is such that the individual is practically prevented from engaging in those activities.

The phrase “substantially all” means more than “most”, a “goodly number” or “a majority” of the pre-accident activities. An applicant should testify about which activities were more important to his own normal life before the accident, and the arbitrator should be permitted to rely upon that testimony, and if accepted, to assign greater weight to those activities in determining his entitlement to non-earner benefits.³

EVIDENCE AND ANALYSIS:

The Applicant was injured when he was hit by a car while he was walking across a road at an intersection on October 25, 2013 (“2013 accident”). He suffered various injuries to both the left and right sides of his body when he fell to the ground, but the most serious injury was to his right knee.

The Applicant’s activities prior to the 2013 accident

In determining the Applicant’s entitlement to the benefit claimed, there are two important events: a motor vehicle accident at work on May 10, 2012 (“2012 accident”) and the 2013 accident. The Applicant was injured in his right knee in both accidents.

The Applicant and his mother testified as to the normal life of the Applicant prior to both accidents and after each of them. In addition, there is a three-volume document brief that was marked as Exhibit 1 which contained medical reports, correspondence between the Applicant and Aviva, clinical notes and records of several hospitals and the Workplace Safety & Insurance Board and Accident Benefits File from the 2012 accident.⁴ The Applicant provided a statement dated March 11, 2013 in the Accident Benefits file from the 2012 accident which was provided by the Applicant for the claims arising from that accident in which he described both his pre-accident life and post-accident. In addition, the Applicant provided a statement on February 11, 2014 concerning the 2013 accident.⁵

The Applicant and his mother provided testimony as to his normal life prior to the 2012 accident. He was described as an active, jovial person, close to his mother. Both recalled that he helped her with household chores and the mother/son activities included attending church, watching TV together and playing board games together. There was an easy habit of communication between them. He played basketball and tennis for recreation. He drove his mother’s car to work. Their recollection was that he lived with his family which also included his father and siblings. His mother testified that before the 2012 accident she thought he would become a comedian because he was always joking around and laughing. He testified that he wanted to become a police officer but with his limited education he could not. He took a security guard course and became licensed as a security guard.

He is the father of a child born in 2011. He testified that he left school without completing his high school graduation requirements to support his son. His son lived with his (the son’s) mother who lived with her family. The Applicant had access visits to his son who visited with him at his home (his family’s home). He testified that he spent time two or three times a week with his son, and his mother testified that she was very proud of him as he had been a good father to his child and he seemed able to relate well to his son. At the time of the 2012 accident, he was seeing his child regularly, had an active social life and was physically strong.

Despite his lack of education he was able to secure work and his income tax assessments from 2008 to 2015⁶ indicate he was consistently increasing his income until 2012 when the 2012 accident occurred. Thereafter, his income dramatically dropped, though there is T4 earnings income shown in 2013, 2014 and 2015 indicating he was able to work from time to time. He was late in filing tax returns: he did not file tax returns for 2010 and 2011 until 2014, and for 2012 to 2015 until 2016.

The 2012 accident

In the 2012 accident, the work vehicle in which the Applicant was a passenger was struck twice. In addition to other injuries, his right knee was badly injured requiring over 8 months of physical treatment followed by surgery to remove the meniscus. The posterior cruciate ligament (“PCL”) was badly torn in the accident and his knee caused him pain such that he was not able to return to work until after the surgery. He testified that he tried to go back to the landscaping job he had had prior to the accident but he could not keep up with the job requirements because his knee gave out.

After the 2012 accident, the Applicant was unable to return to his recreational activities. He went to physiotherapy. He attended church with his mother and played board games with her, and the little evidence I have of the period indicates that he was still maintaining his relationship with his son (though there apparently were stresses in the relationship with the child’s mother over support). His injuries limited the activities he could do with the child because of his right knee. He suffered pain and had limited range of motion in his leg. He still had a good relationship with his mother. His father drove him to and from his physiotherapy appointments and there is information in the file that he also cooked for him. The Applicant and his mother both confirmed that his knee was getting better over the months following the surgery. He testified that he was able to start jogging, albeit for short periods, in August 2013 and his mother testified that he was starting to send out job applications.

The Sunnybrook Health Centre where his January 2013 knee surgery occurred has produced the records concerning his surgery.⁷ The Applicant had been complaining of recurrent episodes of locking of the right knee and it giving way together with pain in the knee joint. Walking over uneven ground was difficult. He suffered sleep disturbance due to the knee pain and migraine headaches, and Tylenol was not helpful. In the file is a note that his physiotherapist had told him not to work. The plan for treatment of the knee at that time was to do the surgery on the torn meniscus and manage the PCL injury with physiotherapy until the Applicant had recovered from the surgery on the meniscus and had sufficient time to strengthen his leg. Until the surgery, he had work restrictions for heavy lifting/carrying, pushing, pulling, kneeling, crouching, low level lifting and prolonged standing and walking, and for stairs and uneven ground.

The surgery was done on January 10, 2013 and the Surgical Specialty Clinic Follow-Up Assessment report date January 25, 2013⁸ contains a note from the surgeon that the Applicant reported to have been doing some jogging and he was denying any significant pain or problems. The knee had excellent range of motion despite some residual swelling. The work restrictions listed above were recommended for another 4 weeks. A follow up appointment was to be scheduled in three months as there was still the PCL tear to deal with.

The 2013 accident

Both the Applicant and his mother testified that prior to the 2013 accident he lived with the rest of the family: his father, a younger brother and a sister as well as the mother.

The Applicant testified that he had started to feel more like himself in August 2013 but the 2013 accident in which his right knee was reinjured caused a significant setback. There is no record that I could locate in the materials as to what happened about the PCL injury which was to be reassessed in the spring of 2013. The Applicant testified that within days of the 2013 accident he started using crack cocaine and that his slide into addiction came swiftly after that point.

The Applicant’s mother testified that his attitude after the 2013 accident was totally changed compared to his response after the 2012 accident. He became depressed, isolated and distant and easily irritated and angered. She could not understand the change and tried to encourage him, which only led to arguments with him. There was a discontinuity in his access to his son and therefore a disruption in that relationship that is now being repaired. A few months after the accident (there are varying recollections of the date) she asked him to leave the family home because of his disrespectful attitude towards her. He testified that he could recall little of his life in the period prior to the accident except that he was starting to get things back in place in August. He recalled being badly discouraged when his knee hurt so badly again. Even though he had had a good outcome with the surgery in 2013, he found cocaine was easily available and made him feel so much better.

In response to his application for accident benefits, Aviva arranged an independent assessment conducted by a general practitioner, Dr. David Goldstein, in February 2014 within four months of the accident with respect to a treatment plan which Aviva ultimately denied. Dr. Goldstein concluded that the Applicant’s injuries fell within the Minor Injury Guideline (“MIG”)⁹ because there was only the Applicant’s “subjective report” of a pre-existing medical condition that would prevent him from achieving maximal recovery under the $3500 MIG structure. He found there was no compelling evidence of the Applicant’s knee injury or the outstanding PCL tear. Dr. Goldstein fairly provided that his opinion as to the applicability of the MIG may change if medical documentation were provided to support the Applicant’s report of his knee injury and the surgery.¹⁰ In his testimony Dr. Goldstein was clear that an impact such as the Applicant sustained in the 2013 accident would make his knee condition worse than if he had not had the prior condition and that the 2013 accident likely made his knee condition worse. He acknowledged that what he saw in his assessment was in stark and negative contrast to what the Sunnybrook orthopaedic surgeon observed in the follow-up appointment a couple of weeks after the surgery.

In response to the Applicant’s application for non-earner benefits, Aviva arranged for insurer’s independent examinations in July of 2014. An In-Home Assessment was conducted by occupational therapist J. Harding (“OT”) at the family home but both the Applicant and his mother indicated that he did not live there continuously at that time, that his living arrangements involved his staying with friends rather than at the family home. At the time of the assessment, according to the mother’s testimony, the Applicant asked to come to the family home for the assessment and the mother did not object so long as he obeyed the house rules.

In July 2014, Dr. Goldstein was asked to reassess the Applicant in person. Also, the Applicant was scheduled to meet with a psychologist and to have the In-Home assessment referred to above done by the OT. The reports of two of those three assessments are included in the record as part of a Multidisciplinary Report by CanAssess dated January 19, 2015.¹¹ The assessment by Dr. Goldstein was held July 15, 2014 and the OT’s In-Home Assessment was done July 4, 2014, but their reports were not provided to the Applicant until after the psychologist’s assessment was completed January 6, 2015, almost 6 months after those two assessment were conducted. The psychologist’s assessment was excluded from the record on consent but another document was included, entitled “Overall Clinical Impression”, written by the OT. Since this clinical impression was prepared by someone with only occupational therapy qualifications and since the clinical impression must have been formed taking into account information in a report which has been excluded, I have given no weight to this document.

In his assessment, Dr. Goldstein discussed the Applicant’s functional history pre- and post-accident under the headings of Self-care, Homemaking and Dependent care. He noted that the Applicant’s complaints at that time were neck pain, left chest wall pain, low back pain and right knee pain. He reported that the Applicant felt depressed and was sleeping throughout the day and had a poor appetite. With respect to the right knee, he observed in this assessment (as he had in the February 2014 assessment) that the Applicant limped and held his right leg straight. Flexion in the knee was limited to 30 degrees due to reports of pain with tenderness and pain on testing. He did not observe any signs of poor or limited effort on the part of the Applicant during the assessment. In cross-examination, Dr. Goldstein acknowledged that his questions as to the areas of function of the Applicant’s life excluded certain important elements such as his role in his son’s life and the extent to which the injury to his knee and back had changed that, though he agreed that the time with the child would be important. He was also told that the Applicant was living in a rented basement apartment but the OT’s assessment was conducted in the family home. Dr. Goldstein did not in fact ask any questions about the living arrangements before and after this accident or about the relationships with family members. In terms of activities, he asked the Applicant about his activities and was told he was no longer playing basketball. Dr. Goldstein relied heavily on the assessment of the Applicant’s functioning provided by the OT though he agreed that there was a difference between someone’s functional ability and what a person is capable of doing given the pain they may be suffering.

His opinion provided in his assessment was that the Applicant was not suffering from a complete inability to carry on a normal life. He had no further information on the PCL and injury from the 2012 accident than he had had in his February 2014 assessment but he did note that this previous history could potentially have an effect on the Applicant’s recovery causing more prolonged recovery as well as a potentially more serious injury to the knee. Dr. Goldstein recommended that in returning to his normal activities of daily life the Applicant should be restricted from prolonged standing and walking, traversing stairs, running and carrying heavy objects. He recommended reassessment in the future based on imaging.

It was not until the spring of 2015 that Dr. Goldstein received the clinical notes and records from Sunnybrook Health Sciences concerning the meniscus repair and the post-operative report. He refused to change his opinion expressed in his July 15, 2015 assessment that the Applicant did not suffer a complete inability to carry on a normal life. He reported:

The new documents provide sufficient compelling evidence to support a history of prior right knee pathology. However, the conclusion reached during the assessment completed July 15, 2013 was based on the [Applicant’s] functional abilities. The [Applicant] at the time of the assessment was considered not to suffer a compete inability to carry on normal life based on his functional abilities demonstrated and history provided.¹²

Dr. Goldstein was also provided with records from Kingston General Hospital and from a physiotherapy clinic. The hospital records related to an emergency room visit on June 1, 2015 when the Applicant attended there with ongoing knee pain. The ER physician made a referral for possible bursitis and management of PCL injury.¹³ Dr. Goldstein again refused to change his assessment.

Under the general principles for assessment of the non-earner benefit claim, where the claim rests in pain, the question is not whether the Applicant can physically do these activities but whether the degree of pain experienced either at the time of or subsequent to the activity is such that the individual is practically prevented from engaging in those activities. Therefore, it is important to assess the OT’s report on the Applicant’s functioning.

In this report of the assessment held July 4, 2014, the OT opined that the Applicant demonstrated a poor or inconsistent effort throughout the assessment. She reported that the Applicant demonstrated functional standing and walking tolerances, stair climbing abilities, semi-squatting abilities, and range of motion (“ROM”) in all major joints. His poor or inconsistent effort was noted because he declined to attempt formal kneeling and squatting, he reported pain in his right knee under formal ROM testing, and he declined to demonstrate various personal care and household tasks. She concluded that, given the Applicant’s demonstrated abilities as well as inconsistencies throughout the assessment, he had the physical capabilities to perform all pre-accident activities in a safe and independent manner.¹⁴

If one looks in more detail at the pre- and post-injury assessment, the OT noted that the Applicant rated his knee pain as constant, 9 out of 10, and aggravated by walking, bending, twisting and putting pressure on it. She observed him stand/walk for three minutes continuously and for a total of eight minutes intermittently throughout the assessment and to weight shift to his left leg. She observed his limp. He went up the steps of his home one step at a time, holding the rail and keeping his right knee in significant extension compared to the left. He reported he could squat but it was painful and he could not kneel due to his knee injury. She noted that his limp was worse when carrying with the left hand than the right hand when his weight carrying ability was tested. He reported pain in his low back and in his right knee during the testing.

I note that, in this OT report from the assessment July 4, 2014, the OT reports full range of motion in the right knee and that is totally contrary to everything that the doctors have reported, including Dr. Goldstein. It was the Applicant‘s inconsistencies in performance that seem to get the most attention in this report with respect to each of the activities of daily living she assessed. She described his standing as “functional” even though she only saw him stand for three minutes at a time, eight minutes in total. When considering the task of caring for his son, such as playing leapfrog, picking his son up and walking around while holding his son, and taking the son to a fast food outlet, she opined that he had the physical capabilities to perform these tasks. She could only have come to that conclusion if she believed he was faking his knee injury.

The OT prepared an addendum report dated May 5, 2015.¹⁵ She reported that she was provided with an x-ray of the knee from March 2015 by Dixie X-Ray. She refused to change her report as to the Applicant’s ability to function.

At each of these assessments, the Applicant told the assessors about his earlier accident and the injury and surgery to his knee. Because there was no documentation of it, they did not give any weight to his report. Even when they got the information, they refused to change their opinion. Dr. Goldstein, for instance, never wrote an addendum amending his opinion that the Applicant’s injuries fell within the MIG even though he noted in his report of May 5, 2015 that the Applicant had now provided compelling evidence of his pre-accident knee injury and surgery that corroborated what he told Dr. Goldstein.

Similarly the OT refused to change her opinion concerning the functional ability of the Applicant. It is not clear whether she received or even read the Sunnybrook Health Science records from the knee operation of January 2013. There is a notation of “Sunnybrook Health sciences clinical Notes and Records (addendum doc)” in her listing of documents, but she does not report having seen any of those records in her addendum report itself. Her addendum report is completed the same day as that of Dr. Goldstein in which he refers to the “compelling evidence” of the pre-existing knee injury and the impact he opined it would have. In her addendum, Ms. Harding refused to change her opinion that he could function and required no occupational therapy intervention. Given the availability of the hospital records from January 2013 providing compelling evidence of serious injury to the Applicant’s knee, her refusal to re-examine her assessment of his functioning is not sustainable. Since she did not testify, there was no opportunity for her to explain the inconsistencies in her position and therefore I give her reports no weight.

Given the reliance that Dr. Goldstein placed on the OT’s opinion and the issues with respect to his own opinion, I do not accept Dr. Goldstein’s opinion that the Applicant has not suffered a complete inability to lead a normal life.

I was also provided with paper review reports by Dr. Bruce Paitich, an orthopaedic surgeon.¹⁶ These reports deal with claims not in issue before me and Dr. Paitich did not assess the Applicant in person or testify. Therefore I give his opinion no weight.

ANALYSIS

The entitlement to the non-earner benefit is provided in Section 12 of the Schedule with the relevant definitions provided in section 3 of the Schedule. The Applicant has the burden of proof on the balance of probabilities to show his entitlement to the benefit. The onus is on the Applicant to prove his case and not on Aviva to prove the contrary. There are serious issues with respect to the Applicant’s evidence.

Both the Applicant and his mother testified. Both shared very limited recollection of either the period before the 2013 accident or the post-2013 accident period. Both indicated great reluctance to talk about the post-2013 accident period, that substantial period of time between October 2013 and the Hearing. The Applicant testified that he was addicted to cocaine in this period and that has damaged his recollection. He moved frequently and lived on the street. He was secretive about his addiction, sharing the information only with other “crackheads”. In the fall of 2017, he had been going through a form of rehabilitation for his addiction with Centre for Addiction and Mental Health and he had been told not to revisit the events of his period of addiction in order to prevent relapse. He became very agitated during the examination in chief as his counsel attempted to elicit from him the details of his post-accident activities in order to provide the evidentiary base of post-accident injuries and interference in his activities of daily living. On more than one occasion he told his counsel that he did not want to talk about that period because of the risk of relapse. He became agitated and the Hearing was briefly recessed. What evidence he gave of the period emphasized the disconnected nature of his living arrangements, the shame he felt at being addicted, the secrecy that he insisted on with respect to his addiction and his frustration at being unable to move on with his life because of the injuries from the two accidents. His needed secrecy had some semblance of credibility given the prospect of loss of access to his son.

The time frames of his living arrangements after the 2013 accident are not clear and this is an important aspect of daily living but also an important element in assessing credibility. The only other witness called by the Applicant was his mother who testified as to the Applicant’s living arrangements prior to the accident and his activities as she knew them and the post-accident period. She was reluctant to provide much in the way of details about the post-accident period and in addition, she seemed to have limited knowledge. While he lived with the family including the mother, father and two siblings, he was an adult child at the time of both accidents, holding down a job and responsible for child support and access visits to his son. Within four months (if not fewer) of the 2013 accident, the Applicant’s post-accident behaviour was so disturbing that she told him to move out. She testified that thereafter he would stay with friends or wherever he could and from time to time she would let him move back in, only to insist that he leave again because he treated her in a disrespectful way. He has given a residence address in Kingston recorded in the clinical notes and records of the Kingston General Hospital and other records, including correspondence with Aviva, but it appears that the Applicant’s mother was not aware of his moving to Kingston. She testified that she did not know until a few months before the Hearing that her son had become addicted to crack cocaine and gotten into trouble with the law as a result. She was, at the time of the Hearing, acting as his surety and he had to live with her. Given these gaps in her knowledge on such a basic issue as his residence, I am unable to conclude that she can be regarded as a knowledgeable witness because the Applicant did not maintain enough contact with her to give the detailed testimony needed and it appears that he did not deal honestly with her.

Because of the weakness of the viva voce evidence for the Applicant, it is necessary for me to rely heavily on the documents that were provided in the Joint Document Brief¹⁷ to draw from them what information I can as to the Applicant’s life before and after the 2013 accident. The difficulty with those documents is that the records frequently are merely written records of what the Applicant told the health care provider at the time. The Applicant has acknowledged that he lied to the assessors on the important issue of whether or not he was using illicit drugs. The records do however establish a consistent pattern of ongoing right knee pain that was relieved infrequently and never fully resolved. The Kingston Hospital records that were reviewed by Dr. Goldstein record a trip to the ER in early 2015 by the Applicant complaining of knee pain. In the notes and records of the Vellore Medical Centre and Walk-In Clinic in Woodbridge¹⁸ the Applicant was recorded as complaining of neck pain and knee pain from December 2015 on to April 2017 and he was prescribed pain medication and an anti-inflammatory. His address is now in Woodbridge. By March 2016 he was having trouble sleeping and hearing voices and crying and saying that he cannot cope. By April 2017 he was asking for a referral to a psychiatrist.

Aviva’s position is that the request for a referral to a psychiatrist and the decision to describe himself as a cocaine addict is a convenient way to escape accountability for certain of his actions in the spring of 2017. Aviva also submits that the addiction is also a convenient way to avoid a careful analysis of pre-accident and post-accident activities of daily living. Dr. Goldstein testified that he had no idea that the Applicant was a cocaine addict, though he saw him twice for assessment within six months and those six months follow the date when the Applicant indicated he had started using and becoming addicted to cocaine.

The Applicant was not totally successful in hiding his use of illicit drugs in the post-accident period because it is noted in an Ambulatory Consult Report by a Dr. Whelan at St. Michael’s Hospital in the summer of 2016 as follows:

Mr. Newland was a terrible historian. He fell asleep during the interview and had been sleeping most of his visit in clinic. Although he denies any drug use, I suspect it may be a problem for him given his demeanor in clinic today and his seeming intoxication.¹⁹

The reason Dr. Whelan saw the Applicant was on a referral from a Dr. Tansey. Both are orthopaedic surgeons but Dr. Tansey sought out Dr. Whelan’s help because the Applicant was seeking help for his knee and the PCL injury. Dr. Tansey does not do PCL repair work and Dr. Tansey asked for an appointment for the Applicant “in a timely manner” since “through no fault of his own he has been sent around the houses.”²⁰ Dr. Whelan concluded that the PCL injury was high grade, at least a grade 2, if not a grade 3.

Dr. Whelan closed the above quoted paragraph as follows: “In any case, there is no denying he has a high-grade PCL injury. He complains of instability and pain.”

In addition, I was provided with a letter dated April 4, 2016 from Dr. John Armenia, C. Psych. of AssessNet Inc., reporting that a psychological assessment of the Applicant had been completed. Dr. Armenia expressed concern that there be an urgent assessment as the Applicant appeared to be at a risk level for suicide with a specific plan. He requested the appropriate referral to a psychiatrist together with treatment with antidepressant medication and medication for pain control.²¹ The Applicant also argues that his failure on several occasions to show up for the psychological assessment in 2014 (finally submitting to the assessment over seven months from when it was first scheduled) should be interpreted in light of his acknowledged cocaine use in 2014 and as confirmation that he was reluctant to be tested by the psychologist because of his addiction. In this context the identification of the Applicant in the spring of 2017 as a risk to himself and others and his self-identification seeking assistance with cocaine addiction has more appearance of credibility than Aviva’s submissions suggested.

Aviva seeks to cast doubt on the Applicant’s pain complaints by relying on clinical notes of a visit to a walk-in clinic that the Applicant had on November 13, 2013, about three weeks after the accident. He asked for a letter so he could go back to work. He explained that he had been hit by a car and had a knee injury and previous surgery. He is recorded as telling the doctor the pain was better and he attended physio and is no longer having pain. He became confrontational when the doctor asked to examine the knee to check that it was safe to return to work. He finally agreed to be examined and the doctor recorded full range of motion and that the knees were stable bilaterally. The doctor agreed to give the note that he could go back to work but with cautions:

advil prn if pain

continue physio

await ortho appt

await mri appt

discussed in detail is sx or instability reoccur, need to stop working and fu with gp

pt verbalized understanding

Aviva’s position is that the knee recovered from the 2013 accident without ongoing pain in the three weeks and therefore the claims for benefits are not properly supported. Another equally logical conclusion is that the opposite is true: there was no reason for the Applicant to object to an examination by the doctor unless he was concerned that the doctor would find swelling or issues with range of motion and not write the note. That the Applicant would be concerned about getting back to work is consistent with the testimony of his mother that he was always working and able to find work prior to the 2012 accident. His tax returns also support a conclusion that he tried to find work after the 2012 accident and after the 2013 accident. In addition, he received income support based on his ability to return to work. I therefore reject Aviva’s submissions in this regard.

Conclusions

The claim before me is for non-earner benefits arising from impairments following the 2013 accident. The reports that have been filed by Aviva deal with more benefits than this one claim but my decision relates only to that claim and I am not to be taken as making any findings with respect to other claims that might be made or which may already be resolved.

I am satisfied on the evidence that the Applicant has suffered pain and impairments especially with his right knee as a result of the 2013 accident and that he provided compelling evidence of a pre-existing medical condition arising from the damage sustained by his right knee in the 2012 accident. I am satisfied on the evidence that the Applicant has had consistent and ongoing pain in his knee, relieved by the effects of his cocaine addiction from time to time, but without resolution of the underlying weakness caused by the 2012 accident, partially mitigated by the 2013 surgery and subsequently reinjured and aggravated by the 2013 accident. I find that the effects of the 2013 accident on the pre-existing weakness in the knee joint have not been properly considered by Aviva and its consultants in assessing this claim for non-earner benefits. I am satisfied that as a result of his pain and the lack of function in his right knee, he lacks the functioning in his daily activities after the accident as compared to his functioning prior to his 2012 accident and he is not able to effectively participate in his activities of daily living, even going up stairs, walking any distance, standing for any period over a few minutes, etc.

However, I am unable to conclude on the evidence what activities of daily living were the most important to him in either the period prior to the 2013 accident or prior to the 2012 accident. The Applicant has also not provided sufficient evidence to support my finding that that his functioning after the 2013 accident was less than what he had after the 2012 accident and prior to the pre-2013

accident. There are too many inconsistencies in his evidence.

No doubt the persistent nature of his right knee pain has caused an understandable level of frustration for the Applicant. He is at a time in his life when he had a very reasonable expectation that he would be healthy not limping with an inability to fully bend his left knee and going upstairs one step at a time. He had every reason to believe that he would be able to earn a living based on physical strength and endurance and engage in sports and active recreation both with his growing son and his friends.

The Applicant’s failure to succeed in this claim is not because of the reports done by Aviva’s assessors since I have found flaws in them that undermine their conclusions. His failure to succeed arises solely because of the lack of corroborating evidence in support of his testimony. His mother provided as much evidence as she honestly could but he is an adult son whose life has evolved outside the nuclear family. A description of his activities of daily living requires more detail than could be expected of her even without the complications of the cocaine addiction that he has now revealed. There are too many unexplained inconsistencies in elements that should not be in doubt, such as where he was living at any particular point in time, whether or not and where he was able to work, and what his activities were over the period of years. Also, his mother said that he became irritable and easily angered after the 2013 accident and that this was a different attitude to that she had seen before in him. In contrast, his anger was noted in a report of October 30, 2012 from the Sunnybrook Health Services records. The doctor commented on the Applicant’s inappropriate conduct during an appointment with his surgeon in which he was described as “very angry” because of a mix-up in the location of the appointment which required him to be late and to walk a distance, and even though he was late for his appointment because of this, he was angry with the medical staff.²²

To succeed, the Applicant had to demonstrate that there were changes in his post-accident life, and that those changes amounted to his being continuously prevented from engaging in substantially all of his pre-accident activities. I am not satisfied on the evidence I have that he has been continuously prevented by the injuries suffered in the 2013 accident from engaging in the activities in which he engaged in the period prior to that accident. He lived independently of his family from time to time, both before and after the 2013 accident according to the various residence addresses recorded in the clinical notes and records and in his own statements in the insurance files. Neither he nor his mother provided viva voce testimony about his various residences.

The phrase in the Schedule “engaging in” activities means more than isolated post-accident attempts to perform pre-accident activities. The manner in which an activity is performed and the quality of performance must also be considered. If the degree of participation is sufficiently restricted, or the Applicant is merely going through the motions, then it cannot be said that he is truly participating. It appears from the evidence of both the mother and the Applicant that the time spent with his son is important, and further the medical evidence satisfies me that the impairment of his right knee is such that he cannot carry his son anymore and engaging in physical activities will be a challenge, but I have no real evidence of what he has tried to do and no corroborating evidence of the extent of his involvement with his son. There is a dearth of evidence about the Applicant’s activities and I do not have sufficient detail to be satisfied that I can make proper findings of those activities that were more important than others before and after the 2013 accident. The application for non-earner benefits is therefore dismissed.

As I have dismissed the claim for non-earner benefits, there is no interest due on those denied benefits.

EXPENSES:

At the conclusion of the evidence and closing submissions the parties agreed on a process for filing any claim for expenses, in the event that they were unable to agree on such expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.

January 11, 2018

Lynda Tanaka Arbitrator

Date

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:

The Applicant is not entitled to receive a non-earner benefit of $185.00 per week commencing April 25, 2014 to date and ongoing.
The Applicant is not entitled to interest for overdue payment of the non-earner benefits in dispute.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code, with the following revised timetable. The party requesting expenses shall submit the request including supporting material to ADR Chambers, served on the opposing party, within 20 days of the date of this decision. The responding party shall serve and file its response within 10 days of receipt of the request for expenses. Reply material shall be served and filed within 5 days of receipt of the response.