P. F. v. Aviva Insurance, 2018 CanLII 130860

P. F. v. Aviva Insurance

Date: 2018-10-31

Tribunal File Number: 18-002458/AABS

Case Name: 18-002458 v Aviva Insurance

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:

P. F.

Applicant

and

Aviva Insurance

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES

Counsel for the Applicant: Gianmarco Fabiano

Counsel for the Respondent: Danielle Wilkinson, Mark Vella, Julie-Anne Macdonald

In-Person Hearing: October 9-10, 2018

OVERVIEW

1The applicant, P.F., was injured in a motor vehicle accident on October 8, 2015. As a result of the accident, she sustained injuries to her neck and left shoulder, cervical lordosis, psychological impairments, chronic pain and anxiety. P.F. sought benefits from the respondent, Scottish & York (now "Aviva"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the "Schedule").

2Aviva denied P.F.'s claim for Non-Earner Benefits ("NEBs") on the basis that she does not suffer from a complete inability to carry on a normal life. P.F. disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for dispute resolution.

3A case conference was held but the parties were unable to come to a resolution and proceeded to an in-person hearing.

ISSUES IN DISPUTE

4The following are the issues to be decided as per the Case Conference Order of Adjudicator Reilly dated July 24, 2018:

i. Is the applicant entitled to a weekly NEB in the amount of $185.00 per week from May 11, 2016 to date and ongoing submitted November 21, 2015 and denied March 16, 2016?

ii. Is the applicant entitled to an award for unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

iii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

5I find that P.F. is not entitled to NEBs for the period in dispute as she has not demonstrated a complete inability to live a normal life. Accordingly, P.F. is not entitled to an award and no interest is payable.

ANALYSIS

Non-Earner Benefits

6In order to receive NEBs, P.F. must prove that she suffers a complete inability to carry on a normal life as a result of the accident.² A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.³ I find that P.F. is not entitled to NEBs for the period in dispute.

7On review of the medical evidence, I find that P.F. does not suffer from a complete inability to carry on a normal life because her impairments do not cause functional impairment and her day-to-day activities, while reduced, have not substantially changed as a result of the accident. I find that her impairments do not render her completely unable to perform her stated activities of daily living or pursue the interests she had prior to the accident. The clinical notes and records of Dr. Waite, P.F.'s family doctor, provide limited evidence to support consistent accident-related complaints and only make brief mention of her struggle with post-accident activities.

8During the in-person portion of the hearing, P.F.'s testimony focused on her pain and how it impedes her day-to-day living. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.⁴ On P.F's testimony of her daily activities, I find that she does suffer from some pain, as she reports that her pain can rise to a 7-8/10 on the pain scale and that she "masks" it with medication. However, I find that her pain does not practically prevent her from independent self-care or engagement in her daily activities, especially with self-pacing, which prevents her from overextending. For example, while P.F. explained that she no longer runs or attends the gym and sleeps for several hours during the day, she also revealed that many of her reported pre-accident activities remain unchanged or are only slightly reduced post-accident: she performs some housekeeping; she is independent in her self-dressing, toileting and showering; she prepares some meals; she goes grocery shopping and she is able to drive locally.

9The seminal authority of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, requires an assessment of the applicant's pre-accident activities and life circumstances over a reasonable period of time prior to the accident.⁵ The evidence led concerning P.F.'s pre-accident activities and how her impairments as a result of the accident have led to a complete inability to carry on with them post-accident was not persuasive. On cross-examination, both P.F. and her occupational therapist, Daley Zapparoli, acknowledged that she is able to do the following: walk for 50 minutes; sit for 120 minutes; go to the movies, although not as often; go to weddings; see her friends; perform her personal care with the exception of blow-drying her hair; perform light housekeeping work; drive a vehicle; read for pleasure; go grocery shopping and talk on the phone. While she provided testimony that she is unable to complete some of the more onerous housekeeping work, that she sleeps for three-to-four hours per day and requires assistance from her mother, these activities do not amount to a complete inability to carry on a normal life, particularly in contrast to the activities that were revealed she can complete on a daily basis.

10Aviva provided surveillance evidence of the applicant over two periods in both the summer and the winter. The two surveillance reports—which I found to be compelling evidence—revealed that from July 8-10, 2018, P.F. was able to complete the following: leave her home to drive to get gas and coffee; go to the drive-thru bank; go shopping at WalMart; go shopping at No Frills; go shopping at Fortinos; lift various items off of the shelves and bend over to place them in a cart; hold her cellphone between her shoulder and ear while conversing; carry various items with her injured hand; take her sister's dog to a dog park and change her clothes multiple times. The report capturing her activity from December 21-23, 2016 revealed her doing the following: bending at her waist, back and knees to retrieve curbside recycling; attending at a pharmacy; changing her clothes and driving for extended periods. On this evidence, the inconsistencies in P.F.'s reporting of her impairments were shown, and I find that P.F.'s impairments are not continuous and uninterrupted.

11I also find that P.F. has failed to prove that her impairments were caused by the subject accident. During the hearing, P.F. relied heavily on the testimony and report of Mr. Zapparoli, who determined that P.F. does have a complete inability to carry on a normal life. However, the Zapparoli Report was prepared 149 weeks after the subject accident of October 8, 2015. As a result, it is difficult to apportion which injuries and impairments came as a result of the subject accident and which are the result of the second accident of October 12, 2016. In his testimony, Mr. Zapparoli acknowledged that P.F.'s limitations may have arisen from the second accident, since his Report was so far removed from the subject accident and the relevant NEB period. Further, Mr. Zapparoli indicated that he could not comment on P.F.'s state during the 104-week period following the subject accident.

12In contrast, Aviva's assessors, Christina Kovacic, occupational therapist, and Dr. Tabloie, orthopaedic surgeon, both assessed P.F. after the subject accident and before the October 12, 2016 accident. Both assessors examined P.F. within the 104-week period, which is the relevant period in dispute. Specifically, Dr. Tabloie found some evidence of impairment but that her impairments were otherwise unremarkable and that P.F.'s range of motion was within normal-to-full range. Similarly, Ms. Kovacic found that P.F.'s range of motion in her shoulder was slightly limited but within the acceptable range and that her other impairments were unremarkable. I found both assessors to be credible, consistent and reasonable in defending their opinions during the hearing. Both assessors found that P.F. does not suffer from a complete inability to carry on a normal life. As P.F. did not provide persuasive evidence that she has a complete inability to carry on a normal life, I see no reason not to follow the opinions of Ms. Kovacic and Dr. Tabloie.

13On this basis, I find that N.B. is not entitled to NEB's for the period in dispute.

Preliminary Motions, Costs, etc.

14Aviva brought two preliminary motions pursuant to Rules 10.4 and 15 of the Tribunal's Common Rules of Practice and Procedure: first, to exclude the Occupational Therapy Situational Assessment Report of Mr. Zapparoli; and second, to exclude the Collateral Source Interview Report prepared by Mr. Zapparoli. At the hearing, both parties provided submissions on Aviva's challenge to the witness and I reserved my decision.

15Aviva argues that there is a "realistic concern" that Mr. Zapparoli was unable and/or unwilling to comply with his duty to the Tribunal on the grounds that he stepped into the role of an advocate for P.F. in answering a legal question in his Report and also conducting collateral source interviews that function as unsworn affidavit evidence that cannot be cross-examined and amount to double hearsay.

16First, after reviewing his Report and hearing his testimony, I do not find that Mr. Zapparoli was acting as an advocate for P.F. or attempting to usurp the role of the trier of fact. Second, although I understand Aviva's position on the collateral source interviews, Mr. Zapparoli's Reports formed the basis of P.F.'s case and to not admit the Reports would be highly prejudicial to P.F. Accordingly, the Reports were admitted, testimony was heard and, ultimately, weight was assigned. Given the outcome of this hearing, the weight assigned was inconsequential.

17In addition to Aviva's motions, P.F. brought a motion seeking to exclude documentary evidence she alleges was served without proper notice. After hearing submissions from both parties, I dismissed the motion, finding that Aviva's actions did not amount to bad faith and there was no prejudice to P.F. Aviva sought costs in the amount of $750.00 as a result of having to prepare for and make submissions on the late motion filed by P.F. I find that costs are not appropriate, as P.F.'s motion was not, in my view, unreasonable, frivolous, vexatious or in bad faith.

Award and Interest

18P.F. seeks an award pursuant to s. 10 of O. Reg. 664, alleging that Aviva unreasonably withheld payment of the NEB. I disagree. No evidence was led that Aviva unreasonably withheld payment or acted in bad faith. Further, as I have found that no benefits are payable, it follows that no award is payable.

19Similarly, as P.F. is not entitled to the NEB, no interest is payable.

CONCLUSION

20For these reasons, P.F. is not entitled to NEB's for the period in dispute. P.F. is not entitled to an award and no interest is payable. The appeal is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 ["Heath"].
3. 3O. Reg. 34/10, at s. 3(7)(a).
4. 4Heath, supra note 2 at para 50.
5. 5Ibid.