R. S. v. Aviva Insurance Canada, 2017 CanLII 46352

Licence Appeal Tribunal – Automobile Accident Benefits Service

Date: 2017-07-17

Tribunal File Number: 16-003141/AABS

Case Name: 16-003141 v Aviva Insurance Canada

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:

R. S.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Counsel for the applicant: Michelle Brown

Counsel for the Insurance Company: Catherine H. Zingg

HEARD: Written Hearing: May 15, 2017

Overview:

1The applicant was injured in a motor vehicle accident on December 13, 2014. He applied for and was paid a non-earner benefit under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) by Aviva Insurance Canada (“Aviva”). The applicant appealed Aviva’s stoppage of his non-earner benefit effective May 27, 2016 to the Licence Appeal Tribunal – Automobile Accident Benefits Service.

Issues:

2Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week from May 28, 2016 to December 13, 2016, and $320.00 per week from December 14, 2016 to date and ongoing?

3Is the applicant entitled to interest on outstanding payments?

Result:

4The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from May 28, 2016 to December 13, 2016, or $320.00 per week from December 14, 2016 to date.

5Since no payment is owed, the claim for interest is dismissed.

Discussion:

Procedural Issues

6There are three procedural issues that I must address before I discuss the substance of the applicant’s claim.

7First, the applicant objects to Aviva’s submission of surveillance evidence. The applicant submits that the surveillance evidence is in non-compliance with the Tribunal’s Rules relating to service and the Order setting out deadlines for the hearing. The objection was raised in the applicant’s Reply submissions; as a result, Aviva has not had an opportunity to respond. Although I agree that there has been non-compliance, I allow the surveillance footage’s admission into evidence. Moreover, as alternatively submitted by the applicant, I find that the surveillance footage shows, at its highest, that the applicant can perform movements “that are consistent with the pain he described to his treatment providers.” The surveillance footage shows the level movement that the applicant has described in his affidavit. It does not add to my analysis.

8Second, the applicant objects to Aviva’s submission of expert reports. The applicant submits that the reports are also in non-compliance with the Tribunal’s Rules and the Order setting out deadlines for the hearing. While I see the applicant’s point, I am unable to see any prejudice that flows from Aviva’s non-compliance. The applicant expressed none in his submissions. To disallow Aviva’s expert reports would be to focus on technical non-compliance at the expense of other practical considerations, namely having relevant evidence at this hearing. Aviva’s expert reports are admitted into evidence.

9Third, I must express my disappointment in counsel for both parties for failing to comply with the Tribunal’s Order regarding page limits. In an Order dated January 9, 2017, the Tribunal ordered that initial and response submissions in this hearing not exceed 15 double-spaced pages. The applicant submitted 9 single-spaced pages; the respondent 14 single-spaced pages. I expect in the future that counsel, who are both able and experienced, will comply with the Tribunal’s Order.

Substantive Issue: the Non-Earner Benefit

10In order to qualify for a non-earner benefit, the applicant must prove that as a result of the accident he sustained an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident: see ss. 12(2) and 3(7)(a) of the Schedule. In reaching my decision, I consider the evidence in three interrelated parts:

• Life before the accident;
• The impairment sustained as a result of the accident; and
• Life after the accident.

Life before the accident

11The applicant was 28-years old at the time of the accident. He has three children, all of whom lived with their mothers. The applicant lived with his own mother. He was attending school while in his first year of a Business Administration/Marketing diploma program at Centennial College. In his Reply submissions, the applicant described the most important aspects of his life prior to the accident to be his children, his favourite sports such as basketball and soccer, and pursuing his studies.

12Prior to the accident the applicant’s activities of daily living included the following:¹

• Personal care;
• Housekeeping and home maintenance – cooking, washing dishes, laundry, garbage removal;
• Care for his three children: toileting, grooming, bathing, spending time with the children and taking them to outings;
• Sports – basketball, soccer, weight training;
• Attending college;
• Grocery shopping;
• Volunteer work; and
• Social outings: movies, parties.

13The applicant did not provide information about how much time each of these activities occupied during a typical day, week, or month prior to the accident. The time commitment for some of the activities can be inferred to some extent. For example, I have the applicant’s college transcript showing the classes he attended. I am unable, however, to determine what the time commitments of each activity were with any specificity. To continue the example, I do no not know how long the applicant’s classes were or how long he spent studying each week. This will be important in the third stage of the analysis.

The impairment sustained as a result of the accident

14The applicant sustained the following physical impairment as a result of the accident:²

• Whiplash associated disorder WAD 2;
• Cervicothoracic shoulder myofascial dysfunction;
• Lumbar musculoligamentous dysfunction; and
• Right knee patellofemoral dysfunction.

15The applicant sustained the following psychological impairment as a result of the accident:³

• Adjustment disorder with mixed anxiety and depressed mood; and
• Somatic symptom disorder with predominant pain, moderate.

Life after the accident

16The impairments sustained as a result of the accident are important to the extent that they shed light on the applicant’s ability to function after the accident. In considering the evidence related to the applicant’s life after the accident, I must determine whether the impairments sustained as a result of the accident continuously prevent the applicant from engaging in substantially all of the activities in which he ordinarily engaged before the accident. I find that the applicant has not met his onus in establishing his impairment meets this test.

17It is impossible to properly assess whether the applicant is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged is difficult in this case. I do not have sufficient information about the time commitments of the applicant’s pre-accident activities. I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on these activities prior to the accident. For example, child care was listed in the applicant’s Reply material as one of the most important activities in his pre-accident life. His affidavit described it as toileting, grooming, bathing, spending time with the children and taking them to outings. How much time did child care occupy of the applicant’s day? Of his week? Of his month? How much less is he able to dedicate time to this important activity now? I do not know, and I need to know in order to make a decision. The applicant’s failure to provide this information requires me to dismiss his claim. He has not met his onus of proving that he is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged.

18Much debate was had between the parties about whether the impairment sustained as a result of the accident caused the applicant to no longer play basketball or attend college. Due to the lack of information about the applicant’s pre-accident activities, the debate, while important, cannot advance that applicant’s claim. Even if I assumed that the accident caused the applicant to no longer play basketball or attend college, his claim would still be dismissible because of a lack of information about his pre-accident activities.

19The parties also debated whether the applicant’s impairment was caused by other factors unrelated to the accident. That debate similarly does not advance the applicant’s claim. Assuming without deciding that all of the applicant’s impairments were caused by the motor vehicle accident, the applicant is still not entitled to a non-earner benefit because of his failure to provide the information necessary to prove his case.

Interest

20Given my decision, no interest is owing.

Conclusion:

21The applicant has failed to prove that he is prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident. As a result, the applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from May 28, 2016 to December 13, 2016, and $320.00 per week from December 14, 2016 to date. He is also not entitled to interest.

Footnotes

1. 1This information comes from the applicant’s affidavit, which I accept as true.
2. 2Dr. Yuri Marchuk’s report, which followed an independent medical examination commissioned by Aviva.
3. 3Dr. Konstantine Zakzanis’ report, which followed an independent medical examination commissioned by Aviva. The appllicant’s medical evidence does not contradict this diagnoses.