Tribunal File Number: 16-004634/AABS
Case Name: 16-004634 v Certas Home and Auto 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:
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
Adjudicator: D. Gregory Flude
APPEARANCES:
For the Applicant: Murad Huseynov, Counsel
For the Respondent: Yusra Murad, Counsel
Written Hearing: July 19, 2017
REASONS FOR DECISION AND ORDER
1The applicant was injured in an automobile accident on October 20, 2014. She applied to the respondent for a non-earner benefit pursuant to s. 12 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) and was denied. She disputes that denial and has applied to the Tribunal to resolve the dispute.
2The complicating factor in the applicant’s claim is the fact that she was injured in a previous motor vehicle accident on September 5, 2013. The respondent argues that if the applicant qualifies for a non-earner benefit it is because of injuries sustained in the first accident not the second. The applicant argues that the second accident worsened the injuries she sustained in the first accident just at a time when she was recovering and, as a result, she is entitled to a non-earner benefit because of the impact the second accident has had on her ability to lead a normal life.
3For the applicant to succeed she must establish, on a balance of probabilities, that she suffers from a complete inability to lead a normal life as a result of an impairment sustained in the second accident on October 20, 2014. The term “normal” means normal as measured against the abilities of the applicant, not against an objective standard of the average person. Thus, in considering “normal,” the Schedule directs me to consider the realities of the applicant’s life before the October 2014 accident and its realities following it. I have no direct evidence setting out the details of the applicant’s life before and after the accident. I am left to glean the nature of her pre- and post-accident life from statements she made to medical examiners and statements made during an examination under oath conducted by the respondent. Having considered that evidence I find the applicant has failed to establish that she is completely unable to live a normal life.
ISSUES
4In the case conference order referring this matter to a hearing, two substantive issues were identified: one was for a non-earner benefit and the second was for payment of a medical benefit. The applicant withdrew the claim for a medical benefit so the only issue for this hearing is her entitlement to a non-earner benefit. Should she be successful, she seeks interest on any amounts unpaid in accordance with the Schedule.
RESULT
5I find that the applicant is not entitled to a non-earner benefit, and as a result, no interest is payable.
ANALYSIS
6Before proceeding with my analysis, I must address deficiencies in the applicant’s submissions. The case conference order stated:
Document and case law briefs must be page numbered, tabbed and indexed. The parties must refrain from submitting documents not directly relevant to the issues in dispute. It is the responsibility of the parties to draw the relevance of any particular document to the attention of the adjudicator, and the adjudicator will not review and weigh any document not so identified in arriving at the decision.
7Following these simple directives makes it easy for a party to reference relevant material and direct an adjudicator to the specific page in issue. The applicant failed to comply. The pages are not numbered and the applicant failed to direct me to any specific page in support of her submissions. By way of example, using the first instance: in paragraph 6 of the applicant’s submissions she states that she sustained serious physical and psychological injuries in the accident including aggravation of pre-existing injuries from the earlier accident. The evidence cited in support of that proposition is: The clinical notes and records of Islington North Chiropractic. No page number or date of treatment is cited. The Islington North records comprise almost 70 pages of documents with the majority of the pages being handwritten and virtually impossible to read. Similarly a reference to the hospital’s clinical notes and records, which are approximately 20 pages, and a further reference to the applicant’s treating physician’s clinical notes and records, which are 45 pages, without specifics did not provide guidance as to which part of the evidence substantiated the applicant’s position. Notwithstanding the lack of guidance, I did review the records that were submitted.
8The applicant’s submissions reference facts for which there is no evidence in the record. Perhaps the most egregious, but not the only example of this, is a chart at paragraph 23 of the submissions that purports to compare a day in the applicant’s life before the accident with a day in her life since the accident. There is nothing in the evidentiary record that supports this submission. The applicant’s evidence is limited to the clinical notes and records of treating healthcare providers and the reports of doctors retained by the respondent to provide independent opinions on the applicant’s claim, none of which provide the detail set out in the chart.
9The respondent submits that due to the deficiencies in the applicant’s submissions, as noted in paragraph 8 above, factual assertions, not supported by evidence, ought not to be considered. It cites a decision of mine in G. S. and Aviva Insurance Company of Canada1 (G. S.) where I declined to consider factual assertions in submissions that were not supported by evidence. In G .S. the applicant failed to submit material evidence concerning her entitlement to attendant care benefits. In her submissions she made factual allegations that were not supported by the evidence. I held that, in the absence of evidence, I could not determine the truth of any of the factual allegations. I apply that same reasoning here. I have not taken any submissions into account unless they are supported by the evidence.
10Section 12 of the Schedule entitles the applicant to a non-earner benefit if she establishes that she suffers from “a complete inability to live a normal life.” In analysing that section, both parties agree that the starting point for my analysis is the approach set out by the Ontario Court of Appeal in Heath v. Economical Insurance Company2 (Heath):
- Compare the activities and life circumstances of the applicant before the accident to her activities and life circumstances after the accident.
- The comparison should take place over a reasonable period of time and not just constitute a snapshot.
- Consider all of the applicant’s pre-accident activities but more weight may be given to activities that the applicant considered important.
- It is insufficient for the applicant simply to demonstrate changes in her lifestyle, she must show that those changes amount to her being continuously prevented from engaging in substantially all of her pre-accident activities.
- The term “engaging in” should be considered qualitatively, not quantitatively.
- Where pain is the primary factor, consideration must be given to the level of pain, either during or after the activity, to determine if the applicant was capable of engaging in the activity.
11There are three documentary sources that give us some insight into the applicant’s life before and after the October 20, 2014 accident. The applicant was examined by two doctors on behalf of the respondent: Dr. Jeyaraj and Dr. Azadian. She was also examined under oath by the respondent about this accident. Only one of those sources suggests that she had major lifestyle changes as a result of the accident and she disavowed those statements unequivocally in the examination under oath.
12The first source is the least helpful. The applicant was examined by Dr. Jeyaraj, a Family Physician, on behalf of the respondent on February 10, 2015. In his report dated February 13, on page 3, at the end of paragraph 3, D. Jeyaraj recounts that the applicant advised him that:
[The applicant] lives with her children. She commented that her mother comes over and does the cooking and cleaning. Her mother also apparently takes care of her children. [The applicant] currently does report to do some of the dishes at home along with minor grocery shopping. She commented that the majority of grocery shopping is done by her mother.3
13The difficulty with the report to Dr. Jeyaraj is that it provides no contrast of the applicant’s pre- and post-accident lifestyle.
14On February 5, 2015, the applicant was examined by a psychiatrist, Dr. Azadian. In his report dated February 27, 2015, he recounts a discussion with the applicant about her lifestyle:
[The applicant] reports that she presently experiences pain in her neck, shoulders and lower back. She characterizes her pain as constant in nature and she reports that the pain prevents her from getting a good night of sleep and from doing things she used to do with ease. [The applicant] describes her neck and shoulder pain as constant and excruciating. She says that the pain in her neck increases in intensity when she tries to lift or carry heavy items, and push or pull items. She also has more pain at night when she tries to sleep. [The applicant] reports that she still feels stiffness in her neck area and she feels a lot of physical tension in her body. She characterizes her neck and lower back pain as aching and she says that the pain prevents her from walking the way she used to and from doing the chores at home.
Many of [the applicant’s] daily living activities are compromised as a result of her pain. For example [the applicant] reports that she cannot manage the regular activities around the house and that she needs to have some support to do these chores. [The applicant] reports that prior to the accident she was fully independent in all of her activities. Currently she receives help to carry out some of her daily activities.
[The applicant] reports that she has been experiencing sadness and inability to enjoy things. She also reports that she has discontinued her social activities such as going out with her friends, partying and doing the stuff she used to love doing. She says that she enjoyed partying, she enjoyed makeup and a good hair style. She says that she is not in the mood for any of this now. She says, "I used to enjoy a lot of things before the accident. I was an outgoing person and enjoyed a lot of activities out of home. I was very active and I enjoyed my life but I am not able to do any of those things now. Every task is a burden to me." She indicates that she simply prefers to stay at home as she feels tired, depressed or in pain all the time.
15The comments to Dr. Azadian suggest a marked change in the applicant’s life following the October 2014 accident, but Dr. Azadian concludes that the changes relate not to the October 2014 accident but to the September 2013 accident and the impact from a prior abusive relationship with the father of her children.
16Support for Dr. Azadian’s conclusions is found in the answers the applicant gave on her examination under oath. She was repeatedly asked when her lifestyle changed and she repeatedly answered that the changes came about after and as a result of the September 2013 accident.4 Further, she clarified that all of the information reported by Dr. Azadian relating to a decrease in her ability to live a normal life resulted from the September 2013 accident and not the 2014 accident.5
17The other medical evidence in the file provides little assistance in identifying changes in the applicant’s pre- and post-accident lifestyle. Her treating chiropractor, Dr. Agyemang, completed a Disability Certificate with respect to the September 2013 accident on February 6, 2014. He listed a number of back problems and anxiety issues.6 He opines that the applicant would meet the test for a non-earner benefit for in excess of 12 weeks. Dr. Agyemang also completed a Disability Certificate with respect to the October 2014 on November 28, 2014. The injuries he lists are essentially the same as those listed in the earlier Disability Certificate. He is of the view that the applicant would meet the test for non-earner benefits for 9 to 12 weeks. Taken together, the two reports suggest that the injuries sustained by the applicant persisted from one accident to the next and cannot have had much impact on her lifestyle.
18Reviewing the totality of the evidence, I am satisfied that the applicant’s lifestyle changes are attributable to the accident on September 5, 2013. There is no evidence before me that persuades me that she has suffered a deterioration in lifestyle as a result of the accident on October 20, 2014 sufficient to satisfy the test that she now has a compete inability to live a normal life.
ORDER
19This application for a non-earner benefit is dismissed. In light of the dismissal, no interest is owing.
Released: December 19, 2017
___________________________
D. Gregory Flude, Vice-Chair
Footnotes
- Now released on as 16-001756 v Aviva Insurance Company of Canada, 2017 CanLII 33655 (ON LAT)
- Heath v. Economical Mutual Insurance Company, 2009, ONCA 391, 95 O.R. (3d) 785
- Tab 8 of the Respondent’s Submissions
- The Respondent’s Submissions in paragraphs 36 – 42 quote a number of examples from the Examination under Oath Tab 1.
- Respondent’s Submissions, Tab 1 Examination under Oath, Questions 157 to 162
- Tab 5 of the Respondent’s Submissions