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:
A.M.
Appellant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
PANEL: Lori Marzinotto
APPEARANCES:
For the Applicant: Zachery Gerard, Counsel
For the Respondent: Paul Omeziri, Counsel
Heard in-person: October 23-26, 2017
BACKGROUND
1A.M. (the “applicant”) was injured in an automobile accident on December 5, 2015, (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant applied for non-earner benefits (“NEBs”), which the respondent denied. The applicant disagreed with the denial and, therefore, submitted an application to the Licence Appeal Tribunal – Accident Benefits Service (the “Tribunal”).
3The matter proceeded to a case conference, but the parties were unable to resolve the issue in dispute and a hearing was required.
ISSUE IN DISPUTE
4The following is the issue to be decided as stated in the Tribunal’s Order of July 5, 2017:
(a) Is the applicant entitled to payment of a non-earner benefit, in the amount of
$185.00 per week, from October 25, 2016 to date and ongoing?1
RESULT
5The applicant is not entitled to the disputed NEBs.
BACKGROUND
6While at a stop light, a vehicle that had been stopped behind the applicant’s vehicle2 drove forward, rear-ending the applicant’s vehicle. There is conflicting evidence on the extent of resulting damage to the applicant’s vehicle.3
NON-EARNER BENEFIT
7The test for entitlement to NEBs is set out in s. 12(1) of the Schedule. The applicant must prove that she suffers a complete inability to carry on a normal life as a result of the accident. In turn, s. 3(7)(a) of the Schedule states that a person suffers a “complete inability” to carry on a normal life if, as a result of an 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.
8Heath v. Economical Insurance Company4 (“Heath”), the leading Court of Appeal case often cited in cases where NEBs are at issue, outlines the following principles for determining entitlement:
i) Compare the activities and life circumstances of the applicant before the accident to her activities and life circumstances after the accident;
ii) The comparison should take place over a reasonable period of time and not just constitute a snapshot;
iii) Consider all of the applicant’s pre-accident activities but more weight may be given to activities that the applicant considered important.
iv) 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;
v) The term “engaging in” should be considered qualitatively, not quantitatively;
vi) 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.
9Applying these principles, I find that on a balance of probabilities that the applicant has not proven entitlement to NEBs.
Applicant’s Pre-Accident Medical History
10The applicant has an extensive pre-accident medical history. She was last employed in 2013 in a clerical role at a company owned by her family. She had been diagnosed with fibromyalgia and Sweet’s Syndrome, and could not continue working.
11As a result of her diagnoses, the applicant was on long-term disability and had been receiving $2,000 per month until the time of her accident. The applicant had not participated in a gradual return to work program, and, at the time of the accident, there was no plan in place for her to return to work.
12Prior to the accident, the applicant suffered from the following:
Chronic widespread pain and tingling in muscles and joints;5
Significant on-going family life stress;6
December 2014 – ulnar trap release surgery;7
Complaints of upper mid back, bilateral diffuse arm pain;8
Low back “seizing;”9
Numbness and pain in feet, plantar fasciitis in left foot, pain in feet radiating up the legs (symptoms present for two years);10
Diffuse joint pain;11
Headaches;12
Lack of energy & concentration/loses track of thought;13
Sleeping difficulties;14
Weight gain;15 and
Shingles.16
13The applicant provided oral evidence of her life circumstances before the accident as follows:
she was able to complete personal tasks effortlessly unless she was having a bout of her illness, which could last from one week to a month;
would go for walks / walk her dog every day;
outings on weekends (e.g., family gatherings, concerts, football games, dinners, bowling, movies with her children);
household chores, laundry;
grocery shopping;
gardening;
consistently cooked unless bed ridden; and
exercising
played soccer
14Post-accident, the applicant describes her life circumstances as follows:
stopped attending family gatherings, no longer camps;
now needs assistance completing household chores, shopping, laundry;
difficulty taking a shower, hard to hold up a blow dryer;
cooks approximately once per week, eats out a lot resulting in weight gain
“drives around a lot” and difficult for her to close the hatch on her car;
on good days the applicant goes to the mall;
walks 1-2 times per month;
in bed a lot; and
tries to swim three times per week.
15There is conflicting evidence as to when the applicant went to see Dr. Hanson, her family doctor, for the first time after the accident. The first record from Dr. Hanson is dated December 21, 2015. It does not appear that the applicant went to see her family doctor again until March 11, 2016.17
16The applicant indicated that she did not submit a claim for benefits to the respondent for months after the accident because her Occupational Therapist, Ms. Hanna, was on vacation. An OCF-3 dated March 24, 2016 completed by Ms. Hanna lists the applicant’s injuries resulting from the accident as: neck pain, headaches, low back pain and sleep issues. Ms. Hanna stated that these injuries were self-reported. There was no mention of knee or shoulder issues or dizziness on the OCF-3. Part 6 of the OCF-3 indicates that the applicant suffers a complete inability to carry of a normal life and the anticipated duration is more than 12 weeks.
Pre-Accident Medications
17Prior to the accident, the applicant had been taking several medications for her medical conditions.
18There were substantial discrepancies in the evidence with respect to the prescription medication the applicant was taking pre-accident.
19For example, the occupational therapy report of Occupational Therapist Serene Abraham18 indicated that before the accident the applicant was taking Percocet four times per day, while Ms. Hanna’s Occupational Therapy Functional Assessment of June 7, 2016 indicated that the applicant was taking one tablet of Percocet every six hours as needed. To the contrary, Dr. Burke, a physiatrist who provided a Report dated April 4, 2017 along with an addendum report dated September 22, 2017, and who provided oral evidence at the hearing, indicated that the applicant was not taking Percocet at all until after the accident.19
20The applicant gave evidence that, prior to the accident, she did take Percocet “but not as many.” During her testimony, the applicant stated that, prior to the accident, she suffered from neck soreness but not immense pain like she was currently dealing with. She further stated that, prior to the accident, she had lower back pain and would not have it on a daily basis, and described the pain as being on the pain scale of 3-4 two years prior to the accident. This is not consistent with the amount of prescriptions being prescribed, described below.
21The evidence presented regarding the applicant’s pre-accident prescription use makes clear that the applicant was prescribed several pain medications20:
Tramadol/Tramacet (August 21, 2014, July 22, 2014, June 24, 2014)
Oxycodone/Percocet (April 2, 2015)
Cymbalta (November 2013 – June 2014) (30 capsules of Cymbalta was being prescribed every month from October 2015 – December 2015, based on the prescription evidence provided)
Oxycodone/Oxycocet (January 2013) (56 tablets of Oxycocet was being prescribed every two weeks from October 2015 – December 2015, based on the prescription evidence provided)
22The applicant testified that, prior to the accident, she had anxiety and trouble sleeping but that her doctor had helped wean her off of anxiety and sleep medication. The prescription evidence shows otherwise. The applicant had been prescribed Zoplicone (for sleep) since at least 2012. The dosage did not increase after the accident.21 The applicant had been prescribed Clonazepam prior to the accident (July 2012 to August 2014), which is not listed on the prescription summary evidence after August 2014. The applicant stated that her anxiety after the accident is not good, and that she is feeling depressed and is taking Cymbalta. The prescription evidence indicated that the applicant had been taking Cymbalta from at least November 2013 until January 2014 (at 30 mg), and increased her dosage to 60 mg from February 2014 to December 18, 2015.
23Prior to the accident, there is evidence that the applicant was bedridden for 16 hours
per day when she gets sick, and that the applicant’s two boys help her.22
24There is inconsistent evidence with respect to the applicant’s weight gain. The applicant testified that, as a result of the accident, she has gained weight and attributes it to not being able to grocery shop regularly, having more snack foods and eating out a lot. The documentary evidence paints a different picture.
25A November 20, 2013 telephone record from Great-West Life’s long-term disability file indicates that the applicant “was never a small person but used to be active” and, at the time, weighed 200 pounds.23 In March 2014, prior to the accident, the applicant reported to Physiotherapist, JP Chartrand, that she had gained significant weight over the last year due to her lack of activity.24
26The applicant was referred by Dr. Hanson to Rheumatologist, Dr. Rodriques, who prepared a letter dated January 5, 2017, indicating that the applicant’s appetite is not god but that she has gained 70 pounds “mainly because of being on [?] steroids at times”.25 At the time of the visit, it is reported that the applicant weighed 264 pounds. On June 28, 2017, the applicant was seen by Dr. Elashaal, Neurosurgeon. At that time, it was noted that the applicant weighed 240 pounds. Although the records indicate that the applicant gained weight between 2013 and January 2017, she had lost weight between January 2017 and June 28, 2017, post-accident.
27The numerous reports entered as exhibits at the hearing, as well as the oral evidence provided at the hearing by Dr. Naam, Ms. Abraham, Dr. Anwar,
Dr. Hanson, Dr. Burke, Ms. Hanna, in addition to the applicant’s testimony, provides conflicting evidence on the applicant’s life circumstances before the December 5, 2015 accident and after.
28Prior to the accident, Physiotherapist JP Chartrand prepared a Functional Recovery Initial Report dated March 31, 2014, indicating that the applicant attributed some of her presentation at the time due to her weight gain and described being very active with sports and working out prior to this “incident”. The “incident” is not described in the report26. The applicant’s complaints at the time included:
anxiety / stress due to decreased activity in comparison to her pre-condition;
poor quality and duration of sleep due to thought patters and physical discomfort;
reduced energy levels, fatiguing quickly. Able to complete light-medium activities with pacing;
anticipates having difficulty with prolonged positioning especially sitting; and
applicant’s goals include: increasing overall productivity, independence and engagement in activities of daily living and daily routines, specifically, resuming leisure activities outdoors (i.e. walking)
29Many of these are the same complaints the applicant states she has post-accident; however, there are conflicting reports on her abilities.
30The Great-West Life disability file references, more than once, that the applicant was unable to play soccer, which was prior to the accident.27
31Dr. Hanson referred the applicant to a Pain Management Centre for a pain assessment.28 On May 17, 2016, five months post-accident, Dr. Adekoya wrote to Dr. Hanson with his findings. Under the heading “Functional History: Activities of Daily Living”, Dr. Adekoya notes that the applicant states that she is able to perform activities of daily living with some discomfort. She states her pain gets worse with physical activity. The applicant stated that she is able to perform tasks of personal hygiene without much discomfort. She denied symptoms of depression such as lack of sleep, lack of interest in daily activities, changes in concentration or appetite. The doctor’s final impression was fibromyalgia.
32Dr. Burke’s Independent Physiatry Medical Evaluation Report dated April 4, 2017 (date of assessment February 28, 2017) lists the applicant’s self-reported functional history as follows:
Pre-Accident
prior to the accident, the applicant was independent in her housekeeping
loved to cook
independently grocery shopped
enjoyed gardening
going to the gym and going for walks
independent in her personal care
Post- Accident
applicant estimates being able to complete 15% of her pre-accident housekeeping tasks, finds carrying laundry difficult
unable to spend as much time with family
walks less (estimates able to walk for 10 minutes and stand for 20 minutes)
does not shower daily because of pain with transfers
33Dr. Burke diagnosed the applicant with: i) cervical spine whiplash (WAD II) with chronic neck pain and cervicogenic headaches, ii) Thoracic and lumbosacral spine sprain/strain injuries aggravating her pre-existing low back pain with progression to chronic low back pain, iii) mild traumatic brain injury with post-concussion syndrome and post-traumatic headaches, iv) aggravation of her pre-existing fibromyalgia, v) right knee contusion, vi) chronic pain syndrome29.
34Prior to the accident, the applicant was prescribed 56 Percocets every two weeks for pain.30 Dr. Burke agreed that someone taking four Percocets daily with pain complaints for over five years suggests the individual has chronic pain.
35Dr. Burke was aware of the applicant’s fibromyalgia diagnosis and that she had tested positive for 17 of the 18 tender points.31 He further explained that fibromyalgia does not spontaneously resolve and that it fluctuates. He agreed there was no medical evidence to suggest the applicant’s fibromyalgia had resolved prior to the accident. He was aware that the applicant had widespread pain, fatigue and headaches prior to the accident.
36Dr. Burke agreed that the applicant complained of a number of injuries not indicated on the OCF-3, for example, knee pain was not listed on the OCF-3. He agreed that, given that the applicant tested positive for 17 out of 18 tender points which led to the fibromyalgia diagnosis prior to the accident, at least one of the knee areas would be involved. Dr. Burke indicated that the knee contusion likely initially healed.
37Of significance is Dr. Burke’s evidence with respect to the applicant’s abilities and activities of daily living post-accident. While the applicant estimated that she was only able to complete approximately 15% of her pre-accident housekeeping tasks, it was Dr. Burke’s opinion that with pacing strategies, hurt vs. harm education and assistive devices, she would likely be able to complete almost 50% of her pre- accident housekeeping tasks but there was some uncertainty.
38Dr. Burke indicated that the applicant would not be able to do any significant gardening, such as pulling weeds, but she might be able to perform some gardening at waist level. The applicant walks with her family and dog but for shorter periods.
The applicant is able to perform some swimming exercises. She would not be able to sit for long periods of time in a movie theatre.
39Dr. Burke opined that for the most part, the applicant is independent in her personal care activities of daily living but requires help with cooking complex meals, shower transfers at times and toenail care.
40During cross-examination, Dr. Burke confirmed that the applicant is able to do at least 90% of her personal care. In addition, he indicated that based on his report, the applicant can do 50% of her pre-accident housekeeping tasks but on re- examination clarified that there was still some uncertainty as to whether she could complete that amount.
41The respondent had multidisciplinary insurer examinations (“IE”) conducted by: Ms. Abraham (Occupational Therapist), Dr. Naaman (Physiatrist) in order to assess the applicant’s injuries and entitlement to a NEB. They provided reports dated October 5, 2016. These are described below.
IE – Occupational Therapist
42Ms. Abraham assessed the applicant on September 20, 2016. In her report, she notes that the applicant denied pre-existing headaches. There is ample medical evidence noting complaints of headaches pre-accident. Ms. Abraham obtained information from the applicant on her pre- and post-accident lifestyle.
43The applicant reported the following post-accident lifestyle:
able to perform her self-care activities but showers less frequently; able to participate in housekeeping and home maintenance activities but cannot do all activities on one day;
able to prepare simple meals,32 wash a few dishes, sweep the floor, dust at waist level, load and unload the washer and dryer;
able to do lighter aspect of grocery shopping;
able to walk the dog with her kids;
participated in gardening;
able to provide for her children;
attempted family outings; however, less frequently;
able to go out for dinner and movies but noted she has difficulty sitting for a prolonged period of time; and
independent in driving and in vehicle transfers.
44Ms. Abrahams opined that the applicant demonstrated adequate functional abilities to complete all pre-accident self-care activities, and participate in lighter aspects of her pre-accident housekeeping. Ms. Abrahams opined that although there is some impact and change in the applicant’s pre-accident lifestyle, she does not suffer from a complete inability to carry on a normal life
IE – Physiatry
45Dr. Naaman conducted an IE on June 30, 2016 and provided a report and addendum report dated October 5, 2016. In these reports, Dr. Naaman indicated that the applicant stated that she was currently unable to complete basic tasks such as laundry, cooking and cleaning. This was only three months prior to the assessment of Ms. Abrahams, during which the applicant stated that was able to complete these basic tasks.
46Dr. Naaman reviewed Ms. Abrahams’s Occupational Therapy In-Home Assessment Report. Dr. Naaman opined that the applicant’s accident related injuries were resolved within three months. The applicant was able to complete 75-100 % of her pre-accident related housekeeping and100% of her pre-accident personal care. The applicant was very limited prior to the accident and it was Dr. Naaman’s opinion that the applicant had returned to her pre-accident baseline.33
Occupational Therapist
47Ms. Hanna conducted an In-Home Occupational Therapy Functional Assessment on April 29, 2016 and was called as a witness. Ms. Hanna had previously examined the applicant for her Great-West Life disability file.
48Ms. Hanna indicates in her report that the applicant states:
she has difficulty with the majority of her housekeeping tasks;
extreme difficulty with meal preparation and cleanup;
she has resumed driving but reports limited driving ability; and
her leisure activities are more sedentary and isolative.
49Ms. Hanna’s report does not address the issue of NEB but provided an assessment on attendant care needs and recommended attendant care for the applicant. Ms.
Hanna indicated her opinion was based on taking into consideration the applicant’s 2014 condition, the subjective reporting of the applicant during the April 29, 2016 assessment and her observations during the assessment. Ms. Hanna stated that the applicant ended treatment in June 2014 and had not seen her again until April 2016.
50On cross-examination, Ms. Hanna confirmed that when she assessed the applicant and wrote the report in 2016 she did not have: i) any family doctor records from June 2014 to June 2016 or hospital records, ii) did not review a prescription report, iii) did not review records regarding the applicant’s ulnar entrapment surgery, and; v) did not review the neurologists records. Although Ms. Hanna was made aware of the applicant’s fibromyalgia diagnosis, she would not be able to comment on the applicant’s medical condition after June 2014.
51At the hearing, Ms. Hanna was shown surveillance footage of the applicant and the surveillance report prepared by Intrepid Investigations dated August 31, 2017.34
52Surveillance of the applicant was conducted on five consecutive days: August 14, 15, 16, 17, 18, 2017. Surveillance revealed that the applicant was able to attend several locations in one day including shopping at the mall and carrying a large purchase35, attending coffee shops, fast food locations, gas stations, appointments for her children, banks and residences and carrying large bags that the applicant indicated were clothes. The applicant was observed departing from her home in the morning and not returning (other than for short visits ranging from 10-15 minutes or 30 minutes) until the end of the day.
53Ms. Hanna was asked whether the noted activities of the applicant depicted in the surveillance were consistent with what she would expect the applicant to be able to do. Ms. Hanna answered unequivocally “NO” and indicated that this was definitely a change since she saw the applicant.
54Reviewing the totality of the evidence before me, I find that the applicant has not proven on a balance of probabilities she suffers from a complete inability to carry on a normal life.
55Given the applicant’s reporting of her post-accident activities to Ms. Abraham, Dr. Burke’s and Dr. Naaman’s evidence on the applicant’s post-accident activities, the surveillance evidence, prescription history and pre-accident medical history, the applicant is able to engage in most, if not all, of her pre-accident activities of daily living, albeit with some impairments and difficulties. There is ample evidence to suggest that the applicant’s impairments and difficulties are as a result of her pre- existing conditions, especially her fibromyalgia. Her post-accident prescription use is largely unchanged from her pre-accident use. The surveillance evidence demonstrated that the applicant was able to engage in several activities in the community for extended periods of time.
56The applicant must prove that, as a result of the accident, she has an impairment that continuously prevents her from engaging in substantially all of her pre-accident activities. The evidence before me does not persuade me that she is and, accordingly, this application for NEBs is dismissed. In light of the dismissal, no interest is owing.
Released: October 5, 2018
_______________
Lori Marzinotto
Vice-Chair
Footnotes
- The applicant listed interest as an issue in dispute in her closing submissions; however, interest was not listed as an issue in the Order dated July 5, 2017.
- The applicant gave oral evidence that the vehicle behind her had not been stopped before hitting her vehicle.
- Exhibit #1(Accident Report) indicated minor damage to the rear bumper. Exhibit #2 (Ambulance Report) indicated no damage to the vehicle.
- Heath v. Economical Insurance Company, 2009 ONCA 391, 95 OR (3d) 785
- Exhibit #17 p.159
- Exhibit #17 p.159
- Exhibit #10 (p.335) (Exhibit #11 p.57)
- Exhibit #10 p.286
- Exhibit #10 p.292
- Exhibit #17 (May 21, 2015 & February 2, 2016) p.161
- Exhibit #10 p.292
- Exhibit #10 p.292
- Exhibit #17 p.160, Exhibit #10 p.298
- Exhibit #10 p.298
- Exhibit #17 (February 18, 2015) p.160 Note of Dr. Hanson indicates that she had been given steroids (prednisone) and had gained a lot of weight.
- Exhibit #10 p.335 October 2015
- Exhibit #5 p.224-225
- Exhibit #11 p. 55, Abraham’s report dated October 5, 2016
- On-cross-examination, after reviewing the prescription summaries, Dr. Burke admitted the applicant was taking Percocets prior to the Accident.
- Exhibit #7 & Exhibit #8
- Exhibits #7 & #8 indicate that the applicant was prescribed 1 tablet at bedtime of Zoplicone from July 2012 to September 2012. It was increased to 2 tables from October 2012 to August 2014 other than for the month of September 2013 where it was decreased to 1 tablet and from October 2015 to December 21, 2015 it remained at 1 tablet.
- Exhibit #9 The applicant’s Great-West Life long-term disability file (interview October 28, 2013). The October 2013 records also indicate that “she can barely move in the morning” and this continues today but explained that she was diagnosed with plantar fasciitis and uses a ball with pressure points to ease the pain.
- Exhibit #9 p. 805
- Exhibit #10 p. 286
- Exhibit #6 p. 260-261
- Exhibit #10 p.286
- Exhibit #9
- Exhibit #5, p. 251
- Exhibit #17, p.173
- Exhibits #7 & #8 prescription summary
- Dr. Burke explained that previously an individual had to test posited for a minimum of 11 out of 18 tender points for a positive fibromyalgia diagnosis.
- During testimony, the applicant denied having made this statement to the assessor
- Exhibit #17
- Exhibit #12
- Exhibit #12 pg.9, The surveillance report indicates that the applicant exited her vehicle at 10:06 a.m., enter the shopping mall at 10:16 a.m. and exited the mall at 11:16 a.m.