Tribunal File Number: 16-003772/AABS
Case Name: 16-003772 v Gore Mutual Insurance 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:
L. M.
Applicant
and
Gore Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Deborah Neilson
APPEARANCES:
For the Applicant: Michael Henry, counsel
For the Respondent: Jocelyn Tatebe, counsel
HEARD IN WRITING: March 15, 2017
OVERVIEW
[1]. The applicant, L.M., was a pedestrian involved in an automobile accident on December 21, 2015. She sustained fractures to her right wrist and a right hip requiring surgery as a result of the accident and applied for and received statutory accident benefits from the respondent Gore Mutual Insurance Company (“the respondent”).
[2]. The respondent paid the applicant weekly non-earner benefits (“NEBs”) from June 2, 2016 up to August 8, 2016, at which point it denied the applicant was entitled to any further NEBs.
[3]. The applicant disputes the respondent’s denial of NEBs and submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). She claims she is entitled NEBs in the amount of $185.00 per week from August 9, 2016 to date and ongoing and to interest on any overdue payment of benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
[4]. The parties participated in a case conference, but were unable to resolve the issues in dispute. The Tribunal scheduled a written hearing to determine the applicant’s eligibility for the NEBs.1
[5]. I find that the applicant has met her onus proof and that she is entitled to NEBs in the amount of $185.00 per week from August 9, 2016 to date and ongoing for the reasons that follow.
ANALYSIS
[6]. Section 12(1)1 of the Schedule sets out the test for the non-earner benefit and requires an insurer to pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person “suffers a complete inability to carry on a normal life as a result of…the accident.”
[7]. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as follows:
a person suffers 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.
[8]. The respondent disputes that the applicant’s impairments have continuously prevented her from engaging in substantially all of her pre-accident activities since August 8, 2016. I disagree because the evidence shows the pain experienced by the applicant is such that she is practically prevented from engaging in substantially all those activities.
[9]. Both parties rely on the 2009 Court of Appeal decision of Heath v. Economical Mutual Insurance Company (Heath), and agree that the general principles from that decision apply for determining whether the applicant is entitled to NEBs2. Following Heath, I find that the following principles apply to the applicant’s circumstances:
The starting point for the analysis will be to compare the claimant's activities and life circumstances before the accident to her activities and life circumstances after the accident;
All of the pre-accident activities in which the applicant ordinarily engaged should be considered. However, greater weight may be assigned to those activities which the claimant identifies as being important to her pre-accident life;
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities;
The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted";
The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.
In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured 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.
A. Pre-accident Activities
[10]. In determining whether the applicant meets the test, I have considered her signed statement dated April 20, 2016, her affidavit sworn February 14, 2017, and the information provided to her treatment providers and both the applicant’s and the respondent’s various assessors in order to determine what activities she ordinarily engaged in prior to the accident.
[11]. While there are some discrepancies in the evidentiary record in the frequency of the activities, the records were fairly consistent with respect to the activities the applicant engaged in. Where there is a discrepancy in the frequency, I place more weight on the frequencies disclosed closer to the date of the accident when the applicant’s recall would have been better over the more recent reports.
[12]. The applicant was a stay at home parent. She did not have a driver’s licence so she spent her time walking everywhere. The applicant was diagnosed with bi-polar disorder and her medical records indicate that walking in the woods helped her to cope with her depression. I accept that the activities involved in her role as a housekeeper and mother and her ability to walk daily on a frequent basis are activities that were important to the applicant’s pre-accident life.
[13]. The applicant’s affidavit evidence was that caring for and playing with her three grandchildren was her favourite pastime and that being a grandmother is the most important role that she has. The respondent urges me not to consider the applicant’s activities with her grandchildren in my analysis because the applicant failed to mention those activities in her signed statement to the respondent or to any assessors or treatment providers and was first mentioned in the applicant’s affidavit filed as evidence for the hearing.
[14]. The applicant submits that her affidavit evidence is uncontested and uncontroverted because the respondent did not seek to cross-examine her on her affidavit. I accept that the applicant spent time providing care to and playing with her grandchildren and that both activities were important to her for the reasons that follow. Just because the applicant did not mention her activities with her grandchildren to any of her assessors or in her statement does not mean I reject her affidavit evidence of those activities, but it is a matter of weight. In fact, her pre-accident records corroborate her affidavit evidence.
[15]. I accept that the respondent played with and cared for her grandchildren and that those activities were very important to her. The September 18, 2013 clinical note of Dr. Issakoff-Meller, the applicant’s family doctor, states the applicant “is also now babysitting her two granddaughters” three days per week. There is another reference in Dr. Issakoff-Meller’s note of September 23, 2013 that indicates the applicant loves looking after her grandchildren. In her April 20, 2016 statement, the applicant stated that she used to babysit children, but had not done it in three years. This implies that the applicant no longer babysat her grandchildren.
[16]. I find the applicant’s April 20, 2016 statement was not about babysitting her grandchildren because it dealt primarily with her employment status and her financial independency and referred to a time period that preceded her babysitting of her grandchildren by five months. Accordingly, I find that the activities of babysitting and playing with her grandchildren account for some of the activities the applicant ordinarily engaged in prior to the accident and were activities important to her.
[17]. I find that the activities the applicant ordinarily engaged in before the accident are as follows:
housekeeping including sweeping, vacuuming, mopping/washing floors, dusting, making beds, changing linens, cleaning bathrooms, washing dishes;
doing laundry including washing, drying, folding and putting the clothes away, and hanging laundry outside;
garbage removal;
getting up at 6:30 in the morning to make breakfast for her husband and 14 year old daughter, making lunch for her daughter to take to school, preparing dinner in the afternoon and evening for her family;
going out for dinner with her spouse or to visit family and friends sometimes;
walking at least 3 hours per day almost every day to Tim Horton’s, the library, on the trails, to her daughter’s house or to her friend’s house;
walking about 6 times per week to the grocery store to shop;
socializing with her friend and playing with her dogs;
caring for and playing with her 3 grandchildren at her house including chasing and running with them, playing in the kiddy pool, picking them up, helping them climb the jungle gym at the local park, pushing them on the swing set, giving them piggyback rides, drawing, playing hide-and-seek, walking with them and carrying them to the dollar store, doing their laundry, bathing them, cooking for them, and picking up after them;
going dancing in Guelph and Toronto once every week or every other week without her husband; and
reading books, sewing and crocheting.
B. Post-Accident Activities
[18]. The applicant submits that, because she is only partially able to do some of her activities, qualitatively she is not able to engage in the activities in the same manner as pre-accident. The respondent submits that the applicant does not meet the test for entitlement to NEBs because of the number of activities the applicant reported and demonstrated that that she is still capable of doing, despite those activities being on a limited or partial basis.
[19]. The evidence discloses that, although the applicant partially returned to some of the activities important to her such as a number of the housekeeping activities, cooking and walking, she is unable to truly engage in those activities. Nor is she able to play with her grandchildren in the same manner The respondent’s reliance on the applicant’s partial return to some of her activities does not refute the applicant’s evidence that the quality of the applicant’s performance post-accident is sufficiently restricted to the point that it cannot be said that the applicant is truly "engaging in" those activities. I find, based on the evidence, that the applicant’s accident injuries impacted her activities as follows:
unable to walk more than an hour to an hour-and-a-half at a time and has to take several breaks and walk much slower than she used to walk;
no longer reads or walks to the library due to lack of motivation;
no longer sews or crochets due to pain;
cannot wash dishes, or scrub pots & pans;
can no longer play with her grandchildren at the park, push them on the swings, pick them up, help them climb the jungle gym at the park or give them piggyback rides;
cannot bathe her grandchildren;
cooking ability is limited by her inability to cut up food such as a potato, takes her all day and she can no longer cook fresh food;
cannot scrub the bathtub, move the furniture, vacuum or mop/wash floors;
unable to carry laundry and limited ability to empty the washing machine;
unable to wash the oven; and
unable to manage most of her grocery shopping, garbage removal & recycling independently; and
does not go out dancing anymore due to motivation and hip discomfort
[20]. The respondent submits that its denial of NEBs is supported by the applicant’s statement dated April 20, 2016, her reports to the respondent’s insurer’s examiners and the records of the Community Care Access Centre and Wellington Ortho and Rehab. The respondent submits that the documents disclose that she is presently capable of walking, cooking, housekeeping and caring for her grandchildren. For example, the applicant reported in her statement that she was cooking. I note that she also stated that it took her all day to do so. The respondent relies on the applicant’s report on May 10, 2016 to Wellington Ortho and Rehab of being able to cook and eat lobster without feeling limited by her right wrist, and as a result, submits that little weight should be given to Mr. Jain’s August 28, 2016 report that the applicant could not carry a pot of water. There was no indication in the clinical notes of how the lobster was cooked or whether it was fresh lobster. Although the applicant reported to all the assessors that she had partially returned to cooking, she was cooking frozen or canned food rather than fresh food due to her physical limitations. I find the applicant cannot be said to be engaging in her pre-accident ordinary cooking activities given the reduction in the quality of the food and that it would take her all day to cook.
[21]. The respondent also relies on the applicant’s statement in April 2016 that she was going to the grocery store. However, she was not going alone and there is no evidence to counter the applicant’s statement that she was unable to grocery shop unaided.
[22]. The applicant also reported being independent with personal care tasks. Ashok Jain, an occupational therapist, conducted an in-home assessment and prepared a report dated August 28, 2016 at the applicant’s request. Mr. Jain determined she was unable to shave her legs or properly groom her hair as of August 2016. Dr. Zalzal, an orthopaedic surgeon who prepared a medical legal report for her tort claim, states that in November 2016, the applicant needed help in the shower.
[23]. The respondent asks that I give little weight to Mr. Jain’s report because it did not address the complete inability test and he did not review all of the applicant’s medical records or her statement. The fact that Mr. Jain did not review all of the documents available at the time may be relevant to his opinion. However, the respondent’s approach asks me to ignore Mr. Jain’s observations of the applicant’s attempts to engage in a significant number of post-accident activities that show her level of functioning. I find Mr. Jain’s observations are relevant because they address the applicant’s ability to engage in activities that comprised a large portion of the applicant’s life – being a stay at home parent and the primary housekeeper.
[24]. The only activity the applicant reported to the respondent’s FAE assessor, Dr. George Semerdjian, in July 2016, after her slip and fall that is discussed in more detail below, that she had no current concerns with were her child care tasks. She did not disclose her involvement with her grandchildren, so it appears she had no issues with childcare tasks of her 13 year old daughter. She was independent with self-care, but it took her longer. Otherwise, she was unable to tolerate washing dishes, vacuuming and mopping floors. She was only partially able to engage in the remainder of her housekeeping tasks. She had not returned in any significant way to her leisure or recreational activities. She was walking 4 days per week up to 2 km per day, which was one tenth of her pre-accident walking ability. The report supports the applicant’s submission that her performance post-accident is significantly restricted to the point that it cannot be said that the applicant is truly "engaging in" those activities.
[25]. I accept that the applicant partially returned to a number of activities. I am not persuaded by the respondent’s argument that the partial return to half of the applicant’s housekeeping activities means she is truly engaging in those activities. I accept that there are some housekeeping activities consisting of sweeping, dusting, making beds, changing linens, cleaning bathrooms, garbage removal and laundry tasks that the applicant is only partially able to do.
[26]. The applicant’s evidence is that she is afraid to engage in a number of activities. The respondent submits that the applicant’s subjective fear or belief is not the correct test for entitlement. The applicant submits that the respondent has not provided any authority for its submission. I find that in addition to the pain experienced, the applicant has a physical basis for her fears and, therefore, they are relevant to her ability to engage in her pre-accident activities. For example, the evidence disclosed that the applicant’s foot or leg will go out into external rotation at certain walking speeds, her right wrist is not as strong as her left wrist. That together with her occasional flare ups of stabbing, shooting or burning pain radiating into her knee and buttock and shooting pain in her right wrist, all pose a risk for dropping or losing grip of a child.
[27]. Dr. George Semerdjian is a chiropractor who conducted an insurer’s examination and completed a functional abilities assessment of the applicant in July 2016. Dr. Semerdjian rated the applicant with an overall light strength ability and determined the applicant had rare to occasional capacity for kneeling and crouching, which I find would make it difficult, if not impossible, to bathe her grandchildren or play in the kiddie pool or sandbox with them. She had light strength for low, mid and high height lifting and for carrying, which would also restrict the applicant from lifting and carry her grandchildren.
[28]. Given the applicant’s physical limitations and pain complaints, I find that her fears of dropping or losing grip of a grandchild while bathing her are valid fears. It is reasonable that the applicant would not interact with her grandchildren in the same manner post-accident because of the potential of injuring them.
[29]. I also accept that the applicant’s fear of falling and reinjuring her wrist and hip are valid fears given the consistent evidence of ongoing gait and balance problems and the fact that the applicant has fallen and aggravated her accident injuries. The applicant’s limitations are supported by the findings of both the insurer’s examiners and the applicant’s orthopaedic specialist, Dr. Zalzal, whose diagnosed permanent joint damage, the right leg is 1 cm shorter than the left, right thigh atrophy of 3 cm, decreased range of motion in the applicant’s right hip and dominant right hand, and numbness in her right hand. Dr. Dunlop reported that by December 2016, the applicant no longer suffered numbness in her right hand, but she still had gait and balance problems, still lacked some rotation of the forearm as well as some confidence in her strength.
[30]. Dr. Semerdjian found the applicant had a deficit of handgrip peak strength on her right dominant side compared to her left, but there was no functional deficit. He found the applicant had occasional to frequent capacity for walking and stooping/bending. He found the applicant’s walking ability was at the occasional to the frequent level based on the average time it took for her to walk16 feet three times. She complained during the test that it felt like her right leg was going to give out on her and Dr. Semerdjian noted that the applicant walked with an antalgic gait. The applicant reported to Dr. Semerdjian that she was only able to walk about two kilometres per day. No explanation of how this translates to frequency was offered by Dr. Semerdjian. He reported that the term “frequent” means between 2.7 to 5.3 hours per day. Based on Dr. Semerdjian’s use of “frequent,” I find the applicant ordinarily engaged in frequent walking prior to the accident. Dr. Semerdjian’s post-accident frequency assessment was not based on his observations of the applicant walking for 2.7 hours, but was based on his observation of her walking for a total of less than two minutes. Therefore, I give little weight to Dr. Semerdjian’s determination of the applicant’s post-accident walking capacity. I accept the applicant’s evidence that her ability to walk is for one hour to one and a half hours. This translates to walking on an “occasional basis” according to the terms used by Dr. Semerdjian.
[31]. The applicant’s evidence, which I accept, was that prior to the accident, she walked at least three hours per day, which is more than one third of an 8 hour work day and meets Dr. Semerdjian’s definition of frequent. Given the importance to the applicant of her ability to walk, I find that the limitation in the applicant’s inability to walk more than one to one and a half hours a day at slower speeds (and, accordingly, less distance) is a significant and substantial limitation that, together with the reduction in the quality of her ability, equates to a complete inability.
[32]. Dr. Dunlop indicated in his December 21, 2016 report that the applicant reported some improvement since he last saw her and noted that she has returned to most of her activities, but continues to receive help from her family. He did not describe the activities or the extent of the help the applicant receives to do those activities. I find the a partial return does not mean she is engaging in those pre-accident accident activities in light of the applicant’s evidence that she feels unable to return to almost all of her pre-accident activities due to the pain in her hip, groin, back, forearm and wrist; numbness in her pinky and ring finger; fatigue; feelings of sadness; and her lack of desire to return to some of the activities that she used to enjoy.
[33]. I do not accept that a partial return to half of the applicant’s pre-accident housekeeping activities equates to a return to substantially all of her ordinary pre-accident activities. I have considered the number of the activities the applicant has not completely returned to and the manner in which she now engages in those activities and find the degree to which the claimant can perform her housekeeping activities, her walking and her activities with her grandchildren, which were of such importance to the applicant and are now sufficiently restricted, that she cannot be said to be truly “engaging” in those pre-accident activities.
C. The ‘Continuous’ Requirement
[34]. The parties disagree on how the “continuous” requirement in the definition of a “complete inability to carry on a normal life” in s.3 (7)(a) of the Schedule is applied in Heath to the determination that pain must practically prevent a person from engaging in her activities.
[35]. The applicant submits that the Court of Appeal in Heath discounted the notion that pain must be continuously disabling in its own right for it to be properly considered in the NEB analysis. Instead, Heath supports the principle that there is entitlement if 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 the activity.
[36]. While I agree with the applicant that the pain does not have to be continuous to meet the test, I agree with the respondent that the effect of the pain on a person’s functional abilities must be such that the person is continuously prevented from doing the activity. What the Court of Appeal meant by requiring that the degree of pain must practically prevent a person from engaging in activities in order for her to be entitled to NEBs, it that one can have pain after the event that was not present until the activity was engaged in. If that pain occurs whenever the activity is engaged in and is of such a severity that the person is essentially prevented from doing the activity, Heath has determined that two, three or four attempts to engage in the activity will not disrupt the continuity requirement of the test for entitlement.
[37]. The applicant asks me to further ignore the continuous requirement with her submission that the respondent and its insurer’s examiners failed to take into account re-injury she sustained from a slip and fall that occurred in June or July 2016 in determining her entitlement to NEBs. In either June or mid-July 2016, the applicant strained her ankle and thumb in a slip and fall which she attributes to gait and balance problems that flow from her motor vehicle accident. The documents and reports submitted by the respondent contain references to a fall in June 2016 and a fall in mid-July 2016 that required the applicant to attend the emergency department at the hospital. The evidence is not clear whether the references are to the same slip and fall or whether the applicant sustained two separate falls as the dates are not consistent.
[38]. The slip and fall is only relevant if it was caused by accident injuries and prolonged the applicant’s impairments because she still had a complete inability to carry on a normal life at the time of the re-injury. If the applicant is claiming that she had improved to the point that she no longer met the test, but then suffered a relapse because of the slip and fall, such a comment or finding by the insurer’s examiners would not assist the applicant with her claim for NEBs. A finding of a relapse under such circumstances would mean the applicant does not qualify for NEBs because her inability to engage in her pre-accident activities was not continuous.
[39]. The respondent arranged for the applicant to be assessed at a two insurer’s examinations pursuant to s.44 of the Schedule that took place on July 8 and 27, 2016. Based on the results of the insurer’s examinations, the respondent claims the applicant is no longer entitled to NEBs beyond August 8, 2016 as she no longer suffers a complete inability to carry on a normal life. The insurer’s examiners do not address any difference between the applicant’s functional ability in isolation from the exacerbation of the applicant’s injuries from the fall. I do not view this as a failure of the insurer’s examiners to take into account the applicant’s slip and fall because it is only relevant if, prior to the fall, the applicant had recovered to the point she was no longer entitled to NEBs.
[40]. The applicant submits the potential for future deterioration of her functional abilities should be considered, because her orthopaedic specialist, Dr. Zalzal, provided a prognosis in his November 29, 2016 report that the applicant’s condition will probably deteriorate. In this case, I did not have to consider the future condition or deterioration of the applicant’s impairment as I have found she meets the NEB test today. I find the applicant has, on a balance of probabilities established that, as a result of her accident injuries, she is continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. This means that she has established that she still has a complete inability to carry on a normal life as a result of the accident.
ORDER
[41]. The applicant is entitled to NEBs in the amount of $185.00 per week from August 9, 2016 to date and ongoing.
[42]. The applicant is entitled to interest on the overdue payment of NEBs. If the parties are unable to agree on the quantum of interest by October 20, 2017, the parties may serve and file with the Tribunal their submissions on interest according to the following timetable:
Applicant’s submissions due: October 27, 2017
Respondent’s submissions due: November 3, 2017
Applicant’s reply submissions, if any, due: November 8, 2017
Released: October 4, 2017
Deborah Neilson, Adjudicator
Footnotes
- Originally, the applicant also disputed the cost of an examination in the amount of $2,200.00 for an in-home attendant care needs assessment but later withdrew this claim in her submissions.
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391