Tribunal File Number: 17-008086/AABS
Case Name: 17-008086 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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
Counsel for the Applicant: Andrew M. Lee
Counsel for the Respondent: Monica Pathak
HEARD in Writing on: August 7, 2018
OVERVIEW
1The applicant was involved in an automobile accident on November 8, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva Insurance Canada, (“Aviva”) denied her claim for non-earner benefits (NEBs).
DISPUTED BENEFITS
2The sole issue to be decided by the Tribunal in this matter is whether the applicant is entitled to NEBs in the amount of $185.00 per week from November 8, 2016 to date and ongoing, a claim that was submitted to the respondent on November 23, 2016 and denied on April 5, 2017.
FINDINGS
3I find that [the applicant] has not proven her entitlement to the NEBs she seeks. Her application is denied.
REASONS
4Section 12 of the Schedule provides that an insurer must pay a non-earner benefit (“NEB”) to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident
5Section 3(7)(a) prescribes that a person suffers “a complete inability to carry on a normal life” if that person suffers an impairment as a result of the accident that “continuously prevents” him or her from “engaging in substantially all of the activities in which the person ordinarily engaged before the accident”.
6In determining this dispute, I have considered and applied principles for meeting the test for NEB entitlement that have been articulated by the courts in a case called Heath v. Economical Mutual Insurance2 (“Heath”), specifically:
i. “a claimant who merely goes through the motions cannot be said to be engaging in an activity” and that “the question is not whether he can do the activity, but whether [the impairment] practically prevents engaging in activity”.
ii. It is not enough to show changes from pre- to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of her pre-accident activities.
iii. The manner in which an activity is performed and the quality of performance post-accident must be considered. If the degree to which a claimant can perform the activity is sufficiently restricted, it cannot be said that he or she is engaging in the activity.
iv. Proving disability is not sufficient to satisfy the requirements of s. 12(2) of the Schedule. The applicant must establish on a balance of probabilities that his disability prevents him from engaging in substantially all of the activities in which he engaged before the accident.
v. Where pain is the primary factor preventing an applicant from engaging in former activities, the applicant must show that the degree of pain experienced by the applicant either during or subsequent to the activity renders the applicant practically unable to engage in the activity.
7In order to assess fairly whether or not an insured person meets the threshold of inability prescribed by s. 3(7)(a), decision-makers – whether the insurer or an adjudicator – need an accurate accounting of the insured person’s normal activities both before and after the accident. A comparison of pre- and post-accident functionality is essential to establishing entitlement to NEBs.
8Aviva contends that [the applicant] has failed to prove her entitlement to NEBs, because she has failed to provide a consistent and accurate picture of her pre-accident activities. In support of this contention, Aviva submits:
i. [The applicant] claims in her OCF 13 to have been a caregiver to her retired husband before the accident, but was also receiving ODSP4 benefits before the accident, and has been unable to explain the nature of her pre-accident disability. [The applicant] has failed to provide her ODSP file to Aviva for review, despite repeated requests to do so.
ii. The clinical notes and records (CNRs) of Dr. Sofia Elahi, [the applicant]’s family physician, indicate a number of pre-accident medical conditions including morbid obesity, degenerative disc disease in the lower back, spinal stenosis with severe foraminal narrowing at L4-L5, pain and tenderness of paravertebral muscles, mild to moderate osteoarthritis in both knees, ankles, neck and right shoulder, bilateral plantar and Achilles calcaneal spurs in the feet and degenerative changes in the left hip. These qualified her for ODSP and raise unanswered questions about her pre-accident capacity to provide caregiver support to her husband, who is also an ODSP recipient.5
9Aviva also relies on a multidisciplinary insurer’s examination (IE) report dated April 3, 2017 in which:
i. Lynn Rutledge, occupational therapist, who conducted an in-home occupational therapy assessment, indicates that [the applicant] reported “some participation” in her self-care and household tasks, community access and leisure activities, and stated that her leisure activities were unchanged since the accident.
ii. Ms. Rutledge further reported that [the applicant] demonstrated sufficient strength, range of motion and mobility, and cognitive and behavioral “wherewithal” to participate in a number of her normal pre-accident activities, including self-care, housekeeping and leisure activities. She observed [the applicant] demonstrate normal sitting and standing tolerances, bending and stooping with moderate restrictions, normal walking and normal transfer, reaching and light lifting and carrying manoeuvres.
iii. Dr. Frank Loritz, physician, found no evidence of musculoskeletal or neurological impairment related to the accident and concluded that from a physical perspective [the applicant] does not suffer from a complete inability to carry on a normal life.
iv. Dr. David Prendergast, psychologist, found [the applicant] to be an “unreliable historian” with evidence from standardized validation tests6 of over-reporting and malingering responses. Tests indicate extreme exaggeration of cognitive symptoms and pain symptoms, among other validity problems. There was no objective evidence that [the applicant] is unable to carry on pre-accident activities from a psychological perspective.
10To substantiate her, claim, [the applicant] asserts that she has consistently reported her inability to resume her role as a homemaker, and that Aviva’s IE assessors have overlooked this evidence in drawing their conclusions, for example:
i. Dr. Lortiz “failed to apply the SABS test” in finding that [the applicant] was not unable to perform homemaker tasks despite noting that she has significantly limited her participation in housekeeping and that the accident likely exacerbated her pre-existing medical conditions.
ii. Dr. Prendergast “ignored relevant information” such as [the applicant]’s report that since the accident she “simply sits at home and sleeps”, and his diagnostic conclusion is at odds with Dr. Elahi, [the applicant]’s family physician, and Dr. Kekosz, a physiatrist.
iii. Ms. Rutledge’s conclusions were based on quick observations, which provide a poor picture of [the applicant]’s ability to perform housekeeping duties.
11In addition, [the applicant] cites the following in support of her claim:
i. A disability certificate (“OCF-3”) dated January 11, 2017 from Dr. Mahsa Gordanpaur, chiropractor, detailing her injuries and opining that she suffered a complete inability to carry on a normal life, based on her ability to lift, carry, bend or to sit or stand for prolonged periods. He noted moreover a “substantial” inability to perform the housekeeping and home maintenance “service” that she normally performed before the accident.
ii. A report by Dr. Veronica Kekosz, physiatrist, dated December 13, 2017, in which the doctor relates [the applicant]’s reports of pain, unsuccessful treatments and deconditioning due to sedentary lifestyle. Dr. Kekosz opines that [the applicant] is developing chronic pain related to anxiety and depression.
12After reviewing the submissions, I have concluded that [the applicant] has not proven her entitlement to NEBs. My conclusion is based on the following findings:
i. The IE reports are persuasive. They include testing, validity testing and document review. They were conducted by appropriate medical specialists.
ii. [The applicant]’s criticisms of the IE reports are not borne out by my review of those documents, for example:
a. Ms. Rutledge’s conclusions were thorough, detailed and based on appropriate observational practices. I do not share [the applicant]’s apparent view that her assessment was somehow cursory – and, in any event, they are no more cursory than the evaluations by [the applicant]’s practitioners.
b. The suggestion that Dr. Prendergast ignored relevant information is baseless. As a specialist, he is entitled to disagree with other, non-specialist diagnoses. His view of [the applicant] as an unreliable historian is backed by appropriate validity testing. His opinions also carry weight because [the applicant] does not explain how psychological conditions prevent her from doing housekeeping.
c. Dr. Loritz could detect no physiological basis for [the applicant]’s inability to do housework. [The applicant]’s self-reports do not necessarily “trump” such a finding.
iii. As the result of these findings, I find Aviva’s medical evidence more compelling than [the applicant]’s evidence, and accord it more weight.
iv. It is apparent from the evidence in both submissions that [the applicant] had a number of medical conditions before the accident. She was on ODSP. [The applicant]’s failure to produce ODSP records and her failure to discuss this issue raised insurmountable doubts in my mind as to what her pre-accident level of housekeeping activity actually was. As both parties acknowledge, a comparison of pre- and post-accident activity is vital to determining the NEB issue. Without some insights into the evidence, beyond self-reporting, of [the applicant]’s pre-accident level of activity, I cannot conclude that she meets the test for entitlement to NEBs.
CONCLUSIONS
13The applicant has not proven her entitlement to the NEBs she claims.
14The applicant is not entitled to interest as there are no overdue payments owing.
Date of Issue: October 3, 2018
___________________________
Christopher A. Ferguson,
Adjudicator
Footnotes
- O.Reg. 34/10
- Heath v. Economical, 2009 ONCA 391, 2009, 95 OR (3d) 785, cited by both parties
- i.e. her Application for Accident Benefits, submitted to Aviva
- Ontario Disability Support Program
- CNRs dated August 7, 2015, January 3, 2016, May 13,2016, January 17, 2017, and April 12, 2017.
- The tests administered included REY Memory Test, TOMM memory test (indicates level of effort), Modified Somatic Symptoms Questionnaire, Pain Symptom Rating Scale, Brief Carroll Depression Scale.```