Tribunal File Number: 16-004399/AABS
Case Name: 16-004399 v Unifund Assurance Company
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:
O. D.
Applicant
And
Unifund Assurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Applicant: O. D.
Counsel for the Applicant: Andrej Rondas
Counsel for the Insurance Company: Pamela Brownlee
Written Hearing: May 16, 2017
I. Overview:
The applicant, O. D., was injured in an automobile accident on December 4, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
At the time of the accident, the applicant was 72 years old and retired.
The applicant made a claim for non-earner benefits (“NEBs”). She relies on the Disability Certificate dated April 18, 2016 by Chaitalikumari Patel, physiotherapist, and on Dr. Leon Steiner’s psychological report dated August 9, 2016, to support her claim for NEBs.
The respondent denied the applicant the claimed benefits based on insurer’s examination (“IE”) reports dated August 9, 2016, from Mr. Brian Wierdsma, kinesiologist, Dr. Deborah Rabinovitch, physiatrist, and Dr. Hannah Rockman, psychologist, which all concluded that the applicant does not meet the test for NEBs.
The onus is on the applicant, based on a balance of probabilities, to prove that she meets the test for NEBs. That test is that she has a complete inability to carry on a normal life as a result of the accident.
I find that the applicant did not meet her evidentiary burden as she did not provide any persuasive evidence that she meets the test.
II. Issues in dispute :
- Issues raised in the appeal and confirmed in the Case Conference report and order dated March 7, 2017
a. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period June 4, 2016 to date and ongoing?
III. Result:
- I find on all evidence that:
a. The applicant is not entitled to NEBs.
IV. Analysis:
[9.] In the applicant’s submissions, she indicated that she was seeking non-earner benefits for the period of December 4, 2016 to date and ongoing.
[10.] Section 12(7)(a) of the Schedule states that the respondent is not required to pay a NEB for the first 26 weeks after the onset of the complete inability to carry on a normal life.
[11.] According to the parties’ submissions, the first documented onset of the applicant’s eligibility for NEBs is Chaitalikumari Patel’s Disability Certificate dated April 18, 2016. In the absence of any other evidence from the applicant, I find, the earliest date of eligibility for the applicant is October 16, 2016.
[12.] I will now address the applicant’s entitlement to NEBs.
[13.] The test for entitlement to NEB is outlined in subsection 3(7) of the Schedule and states “a person suffers from a complete inability to carry on a normal life as a result of an accident 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.”
[14.] The decision of the Ontario Court of Appeal in Heath v. Economical Mutual Automobile Insurance Co. 2009 ONCA 391 (“Heath”) has provided the most extensive examination and analysis of the proper approach to interpret the test for NEBs. I have relied on this decision to guide my analysis of the applicant’s entitlement in this matter.
[15.] Heath states that the “start point for the analysis whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.” (Heath, para 50)
[16.] The burden of proof is on the applicant to show me how her life was before and after the accident in order to determine whether she has a complete inability to carry on a normal life.
[17.] The applicant has not produced any evidence, other than Dr. Steiner’s psychological report, to show her life before and after the accident. I have summarized the applicant’s activities below:
Life before the Accident
Life after the Accident
Went for walks twice a day
Walks infrequently due to pain
Went to church
Goes to church but not as regularly
Did household chores
Does household chores in pain and requires assistance to complete tasks
[18.] While Dr. Steiner’s report provided some information about the applicant’s activities, it gave a limited picture of the applicant’s activities pre and post-accident. As part of the Heath test, the applicant is required to provide evidence on what activities were most important to her. The applicant did not do this. . Normally, applicants would provide evidence such as sworn affidavits outlining their lives before and after the accident, physician reports and clinical notes and records from various medical practitioners to demonstrate their entitlement to the benefits. Without this evidence, I am unable to identify activities that were most important to her.
[19.] The applicant submitted the following evidence to support her claim for NEBs:
i. Dr. Steiner’s psychological report dated August 9, 2016; and
ii. Disability Certificate completed by Mr. Patel, physiotherapist, dated April 18, 2016.
[20.] The applicant submits that Dr. Steiner diagnosed her with adjustment disorder, specific phobia, situational (driving related); and a chronic pain disorder, which are a direct result of the accident.
[21.] Dr. Steiner concluded the “physical and emotional challenges have combined to the point that [the applicant] can no longer participate, and enjoy and even be interested in activities that would previously provide meaning, pleasure and structure in her life. In this sense, the injury is to be considered a serious impairment as she is substantially unable to carry on the activities of her normal life.” Dr. Steiner also opined that, given the applicant’s age, it is unlikely that her condition will improve.
[22.] Firstly, I acknowledge that the applicant lives with some pain. However, considering the applicant’s activities pre and post-accident, she did not persuade me her adjustment disorder completely prevented her from carrying on a normal life. Dr. Steiner’s conclusions about the applicant’s physical limitations and her pre and post activities, contradict each other, and do not support a finding of a complete inability to lead a normal life. Secondly, I do not find the applicant’s driving phobia to be relevant in this matter. Given that she continues to travel in cars and considering her activities pre and post-accident, there is no evidence before me to support a conclusion this phobia prevents the applicant from carrying on a normal life. Thirdly, Dr. Steiner, psychologist, did not diagnose the applicant with a chronic pain disorder, but rather indicated that her symptoms fulfil the criteria for a chronic pain disorder. I am of the view that Dr. Steiner is not the best medical professional to make such an assessment. Irrespective of the assessment, the applicant’s physical presentation does not appear to have prevented her from participating, although with some pain, in her pre-accident activities.
[23.] Regarding the Disability Certificate, its purpose is to provide a starting point for the respondent to investigate whether the applicant is entitled to the claimed benefit. The information contained in a Disability Certificate is not a diagnosis, but rather a preliminary impression of the applicant’s physical presentation based on information the applicant’s provides and the assessor’s cursory examination. As such, the submission of a Disability Certificate is not sufficient on its own to support a claim for NEBs.
[24.] The respondent relied on insurer’s examination reports dated August 9, 2016, from Mr. Brian Wierdsma, kinesiologist, Dr. Deborah Rabinovitch, physiatrist, and Dr. Hannah Rockman, psychologist, which all concluded that the applicant does not meet the test for NEBs.
[25.] Mr. Wierdsma notes that the applicant had a full range of motion of her cervical and lumbar spine as well as both upper and lower extremities. The applicant also demonstrated no limitations with her sitting and standing tolerances.
[26.] Dr. Rockman diagnosed the applicant with an adjustment disorder with depressed mood. She concluded, from a psychological perspective, the applicant did not have any functional limitations and continued to socialize with her friends and travel in cars.
[27.] Dr. Rabinovitch indicated that the applicant reported that she was independent with her self-care tasks, and has resumed the majority of the lighter housekeeping tasks with assistance for the heavier tasks by her grandchildren. Further, the applicant reported that she continues to walk for exercise, although shorter distances.
[28.] I am of the view that the IE assessors’ observations and conclusions along with the applicant’s self-report of her activities before and after the accident demonstrate that the applicant is able to continue her pre- accident activities.
[29.] I find that the applicant’s life has been impacted by pain and some psychological distress, but not to the extent that would prevent her from carrying on a normal life.
[30.] I find that the applicant has not met the burden of proof to demonstrate that she has met the test for NEBs.
V. Order:
[31.] I order the following:
i. I find that the applicant is not entitled to NEBs for any period (December 4, 2014, June 4, 2015 and October 18, 2016) in this matter.
Released: August 4, 2017
Nicole Treksler, Adjudicator