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:
F.F.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
PANEL: Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant: Katayoun Noohi, Counsel
For the Respondent: Richard Krader, Counsel
HEARD in Writing on: June 25, 2018
OVERVIEW
1The applicant, F.F., was involved in an automobile accident on April 2, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva Insurance Canada, (“Aviva”) denied his claim for non-earner benefits (NEBs).
DISPUTED BENEFITS
2The sole issue to be decided by the Tribunal in this matter is whether the applicant F.F. is entitled to NEBs in the amount of $185.00 per week from September 10, 2015 to date and ongoing, a claim that was effectively denied by Aviva when it terminated F.F.’s NEBs on September 10, 2015.
FINDINGS
3I find that F.F. has not proven his entitlement to the NEBs he seeks. His application is denied.
REASONS
Eligibility for Non Earner Benefits
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) The court ruled that “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 his 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.
Is F.F. entitled to NEBs?
8The nature of F.F.’s physical injuries and his psychological diagnoses are uncontested.
9Aviva did argue that F.F.’s pain complaints were not accident-related, although it did not develop any argument around his psychological diagnoses. However, I determined that F.F. did not meet the “complete inability to carry on a normal life” test, and therefore it was unnecessary for me to address any causation issue.
10F.F. asserts that the accident caused him debilitating pain and psychological issues that have rendered him completely unable to carry on his normal activities of daily living. To substantiate his claim, F.F. submits:
(i) Clinical notes and records (CNRs) from his two family physicians, Dr. Alnoor Aziz and Dr. Ashfaq Saleem, reporting his ongoing neck, back, shoulder and knee pain and noting that he suffers from depression, anxiety and insomnia. A CNR dated July 31, 2017 from Dr. Saleem specifically indicates that F.F. is unable to perform his daily life activities. Dr. Saleem expressed his view, in a letter dated January 16, 2018, that F.F. continues to remain impaired to carry on daily activities including housekeeping, grocery shopping and doing laundry.
(ii) Two psychological assessment reports from Dr. Shahryar Moshiri3 recommending psychological treatment and diagnosing F.F. with malaise/fatigue, adjustment disorder with mixed anxiety and depressed mood, pain disorder (with both physical and psychological components), sleep disorders and driving-specific phobia.
(iii) A report from Dr. Reza Nejad, chiropractor, dated March 23, 2018 describing F.F.’s “unrelenting back pain, aggravated by severe recurring headaches, persisting insomnia and depression” and opines that F.F. is completely unable to carry on a normal life as a result of the injuries arising from the accident.
11To rebut F.F.’s claims, Aviva submits:
(i) An assessment by Dr. Chris Boulias, physiatrist in which F.F. reports that he has resumed all pre-accident activities, including self-care, housekeeping, daily attendance at his masjid and socializing with friends. The doctor noted that F.F.’s avoidance of lifting heavy objects pre-dates the accident. Dr. Boulias concluded that F.F. does not suffer a complete inability to carry on a normal life.
(ii) A psychological assessment by Dr. Jason Bacchiochi in which the psychologist noted no restrictions of activities of daily life from a psychological perspective and concluded that that F.F. does not suffer a complete inability to carry on a normal life.
(iii) An occupational therapy home assessment by Ms. Khadija Lookmanjee, occupational therapist in which F.F. reporting resuming most pre-accident activities including housekeeping, attending his masjid, using public transit and attending therapy appointments. He was observed to perform a number of physical movements, transfers and manoeuvres, with mild impairments noted that were related to pre-accident injuries. Ms. Lookmanjee concluded that F.F. does not suffer a complete inability to carry on a normal life.4
(iv) A psychology assessment by Godwin Lau, psychologist, noting complaints that seemed elevated since F.F.’s earlier assessment and opining that despite psychological complaints, F.F. does not suffer a complete inability to carry on a normal life.
(v) A physiatry assessment by Dr. Alborz Oshidari, in which F.F. reports that he is independent in almost all activities of daily living (he needs some help with showering), drives on some occasions and only takes Tylenol for pain. Dr. Oshidari opines that F.F. has “no impairment in relation to the accident” and attributes his physical challenges to pre-existing medical conditions including degenerative changes to his spine and pre-accident pathology “in the shoulder and knee areas”. According to Dr. Oshidari, from a physical perspective, F.F. does not suffer a complete inability to carry on a normal life.5
(vi) A letter dated March 16, 2017 from Dr. Ross Roussev, neurologist, to Dr. Aziz, GP, linking F.F.’s pain complaints to peripheral neuropathy likely caused by diabetes and recommending strict glycemic control as a key management response.
12After reviewing the parties’ submissions, I have concluded that F.F. has not proven his entitlement to NEBs. My conclusion is based on the following findings:
(i) The IE reports are persuasive. They include interviewing, testing, and medical review. They were conducted by appropriate medical specialists. I assign them greater persuasive value than the evidence provided by F.F.’s experts. I note that Dr. Moshiri did not opine on F.F.’s ability to carry on a normal life from a psychological perspective: he noted that F.F.’s symptoms “interfere with his daily functioning at the present time” – and I am unable to determine whether this means complete inability or not.
(ii) F.F. makes no substantive criticisms of the IE reports with respect to methodology nor does he impugn their characterization of his self-reporting, which to a significant degree support the conclusion that F.F. is not continuously and completely prevented from carrying on a normal life as the result of accident-related impairments.
(iii) Assertions made in F.F.’s Reply submission detailing the difference between pre- and post-accident functioning are inconsistent with his self-reporting to assessors and in any event are not presented with any argument on how they represent a complete inability to carry on a normal life. There was no analysis of changes to F.F.’s functioning against the criteria set out by Heath (see above). As a result, I am unable to conclude that F.F. is completely unable to carry on a normal life.
Procedural Issue: Should IEs conducted in 2018 be excluded from evidence?
13In his Reply submission, F.F. asked the Tribunal to exclude from evidence the IEs included in a multidisciplinary IE report dated May 11, 2018.
14F.F. claims that Aviva’s request for these IEs was unreasonable and excessive, given his attendance at five IEs in 2015.
15Under s.44(1) of the Schedule, insurers are permitted to conduct IEs periodically to assess ongoing eligibility, as long as they don’t do so “more often than is reasonably necessary”.
16I deny F.F.’s motion for the following reasons:
(i) F.F. provided me with no persuasive reason to consider Aviva’s 2018 request for IEs to be unreasonable or excessive. It is not at all apparent to me that conducting an IE in spring 2018 after a previous “round” in summer 2015 is “too frequent” or excessive.
(ii) F.F. presented Aviva with new information respecting his NEB claim in 2017 and into 2018, including the report from Dr. Nejad and CNRs plus a letter from Dr. Saleem and a follow-up letter from Dr. Moshiri, all noted above. Aviva acted reasonably in responding to this new evidence by assessing it – and F.F. -- through new IEs. Aviva is not required to “freeze” its assessment of F.F.’s condition while F.F. updates his medical evidence, and it is not obliged to confine its re-assessment to a review of medical documents. It was certainly not required to accept new medical evidence at face value or rely on old reports to address it.
(iii) F.F. went to the 2018 IEs. He raised no objection to them at the time6, nor did he raise objections in his initial submission or by way of motion, until the Reply stage. In my view, it would be unfair to exclude viable evidence at F.F.’s last-minute request. He was fully aware of the contents of Aviva’s 2017 IEs and was not prejudiced with respect to his ability to address their contents and make his case.
CONCLUSIONS
17F.F. has not proven his entitlement to the NEBs he claims.
18F.F. is not entitled to interest as there are no overdue payments owing.
Date of Issue: October 25, 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
- Dated October 27, 2015 and May 12, 2017.
- The reports from Drs. Boulias, Bacchiochi and Ms. Lookmanjee are all included in a multidisciplinary insurer’s examination (IE) report dated September 9, 2015.
- The reports from Drs. Lau and Oshidari form an updated multidisciplinary IE report dated May 11, 2018.
- FF had legal representation at the time. There is no suggestion that he was unaware of his legal right to contest an unreasonable or excessive demand to attend IEs. Aviva provided evidence that it contacted FF’s legal counsel to discuss its decision to schedule more IEs in 2018.
