Tribunal File Number: 17-005360/AABS
Case Name: 17-005360 v The Guarantee Company of North America
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
The Guarantee Company of North America
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Counsel for the Applicant: Apurva Shah
Counsel for the Respondent: Patrick Brennan
Heard In-person: March 26, 2018
OVERVIEW
1The applicant was injured in an automobile accident on January 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The applicant submitted an application to the Licence Appeal Tribunal –Automobile Accident Benefits Service (the “Tribunal”).
3The parties participated in a case conference, but they were unable to resolve the issues in dispute between them.
4With the consent of the parties, a hearing in person was scheduled for March 26, 2018.
ISSUES IN DISPUTE
5The issues in dispute were identified and agreed to as follows:
(i) Is the applicant entitled to receive a weekly non-earner benefit of $185.00 from August 25, 2015, to August 25, 2016, a request that was submitted to the respondent on June 25, 2015, and denied on August 25, 2015?
(ii) Is the applicant entitled to interest on the overdue payment of benefits owing?
RESULTS
6The applicant is not entitled to receive a weekly non-earner benefit.
7The applicant is not entitled to receive interest on overdue payments of benefits, as there were no overdue payments of benefits owing.
BACKGROUND
8The applicant was a pedestrian walking through a plaza parking lot on January 20, 2015. She was hit by a motor vehicle and fell on her left side. She was taken to hospital where she was diagnosed by an orthopedic surgeon Dr. Hockman. It was determined that she had a left shoulder fracture and some minor tissue injuries. No surgery was required.
9The applicant saw Dr. Hockman again on January 30, 2015, March 13, 2015, and on April 24, 2015. On the last occasion Dr. Hockman reported that the applicant’s fracture had healed and was in a good position. The applicant was to continue physiotherapy and was discharged from the care of Dr. Hockman.
Pre-Accident Activity
10Prior to the accident, the applicant had her right hip replaced. She also had some knee pain in the left knee that “came and went with the weather”.
11Prior to the accident the applicant would: drive herself to the hair dresser and to bingo; get groceries; take the grandchildren out in the car to the parks and Wonderland; she would do the house cleaning daily, including vacuuming and dusting; do laundry twice a week; take care of the gardening for both the vegetable garden and the flower garden; prepare the meals for she and her husband; go on trips in the winter. The applicant would also go golfing twice a week.
Post –Accident Activity
12The applicant still complains about some pain in the left shoulder. She had to sleep in a chair for the first 3-4 months after the accident, with her arm in a sling. She still goes to physiotherapy and uses acupuncture to manage the pain. The applicant had gaps in her physiotherapy treatment from July 27, 2015 through to August 17, 2015, September 28, 2015 through to December 17, 2015, and from June 28, 2016 through August 11, 2016. She had switched clinics and had been travelling with her daughter and grandchildren for some of this time, which might explain the gaps.
13The applicant only drives herself to bingo and to the hairdresser now. She is afraid to drive more than 2 Kilometers and didn’t drive for the first 6 months after the accident. At all other times, her husband drives her. She is still nervous in parking lots. In cleaning the house, she indicated that she has trouble getting down on the floors to clean and can’t lift the heavy vacuum up and down the stairs.
14The applicant still cleans the house but not to the same standard that she did before. She didn’t clean for the first 8-9 months and had professional cleaners come in to clean the house. The applicant’s husband helps her now with the laundry, and also now helps with the preparation of meals. The applicant can no longer maintain a vegetable garden or the big flower garden that she used to maintain. She does however plant flowers in flower pots. She is no longer independent in dressing herself because of the pain still in the left shoulder. The applicant has to purchase clothes that are easier to put on. She now golfs twice a month. The applicant’s husband now helps with the grocery shopping, cleaning the kitchen, and dusting.
15The applicant claims that she had to modify everything and is working hard to get her independence back. She indicated in her evidence that her left shoulder is better now than it was. She continues do physiotherapy exercises daily. She admitted that she does not see a psychologist to deal with her driving anxieties. She did travel in December 2017 to visit her grandson on his birthday.
MEDICAL REPORTS
16The clinical notes of Dr. Joanne G. Thicke, a physiotherapist, indicate that on March 16, 2015, the applicant stopped taking pain killers. The applicant gave evidence that she stopped, because the pills made her groggy and sleepy.
17The clinical notes of Dr. Hockman indicated that on March 14, 2015, the applicant could move her left arm quite well in all directions 75%. The applicant on cross examination didn’t know how the doctor reached that conclusion.
18The clinical notes of Dr. Bob Karabatsos, an orthopedic surgeon, dated July 29, 2015, indicate the applicant is progressing well with her recovery and overall “the applicant quoted to me a 60% improvement of the pain since the accident in question.” The applicant on cross examination didn’t know how the doctor reached that conclusion.
19The medical report of Dr. J. Kwok, an orthopedic surgeon, dated February 18, 2016, indicated that the applicant advised him that “she has recovered by approximately 50%.”
ANALYSIS
20Section 12(1)1 of the Schedule sets out the requirements for entitlement to a non-earner benefit. An insured person is entitled to a non-earner benefit if:
“The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit. “
Section 3(7)(a) of the Schedule defines “complete inability” as:
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.
21In relation to the issue of defining impairment, the Court of Appeal in Heath v. Economical 1 states:
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 him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase ‘continuously prevents’, means that the claimant must prove disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.
22In relation to the issue of ongoing pain, the courts have held that ongoing pain as a result of an accident is not sufficient to meet the non-earner benefit test. Non-earner benefits are not intended to compensate an insured person from having to engage in post-accident activity with pain and discomfort. 2
23The applicant is still able to be active in most of the pre- accident activities, including driving, playing golf, gardening, cleaning, going on trips etc., but in a more limited manner. Some of the activities require the assistance of her husband including making up beds, grocery shopping, and making dinners.
24I accept the three medical reports above, that set out the level of functionality that the applicant has, relating to her injuries. The reports are by three different doctors and are all consistent in their reporting that the applicant has recovered to a minimum of 50% or more.
25Based on the evidence of the applicant herself, and on the medical reports submitted, I find that the applicant has provided no evidence to show that she has “suffered a complete, continuous inability to carry on a normal life” post-accident, compared to her pre-accident activities” as required by the Schedule.
ORDER
26The applicant’s claim for a non-earner’s benefit in the amount of $185.00 from August 25, 2015, to August 25, 2016, is dismissed.
27The applicant is not entitled to receive interest on overdue payments of benefits, as there were no overdue payments of benefits owing.
Released: July 17, 2018
___________________________
Robert Watt, Adjudicator
Footnotes
- Heath Economical Mutual Insurance Company of Canada, 2009 ONCA 391
- Stranges v. Allstate Company of Canada, 2010 ONCA 457; Cook v Pilot 2005 CarswellOnt. 2697