17-005435 v Northbridge Insurance Company, 2018 CanLII 98284

17-005435 v Northbridge Insurance Company

Date: 2018-05-17

Tribunal File Number: 17-005435/AABS

Case Name: 17-005435 v Northbridge Insurance Company

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

and

Northbridge Insurance Company

Respondent

DECISION

ADJUDICATOR: S. F. Mather

APPEARANCES: D. Maslov, Paralegal for the Applicant S. Sharma, Counsel for the Respondent

Heard in Person: February 20, 2018 in Kitchener In-Writing: Feburary 20, 2018

OVERVIEW

1[The applicant] was involved in a motor vehicle collision on November 20, 2016 when she was 58 years of age. At the time of the accident she was a full-time homemaker and provided before and after-school childcare for her granddaughter. She applied for non-earner benefits (NEB) pursuant to the Statutory Accident Benefits Schedule - Effective June 1, 2016¹ (the “Schedule”) from Northbridge Insurance Company (the “respondent”).

2The respondent denied the claim for NEBs on the basis that the applicant did not suffer a complete inability to carry a normal life as a result of the accident.

3Case conferences took place on October 5, 2017 and January 22, 2018. The parties were unable to resolve the issues in dispute. A hearing, to be held partly in-person and partly in writing, was scheduled. The in-person portion of the hearing was restricted to the cross-examination of the applicant and her husband on their affidavits and final submissions of the parties.

ISSUES

4The issues before me are:

1. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period December 19, 2016 to date and ongoing?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the applicant entitled to an award for any unreasonably withheld or delayed payments pursuant to Section 10 of the R.R.O. 1990, Reg. 664?

RESULT

5I find that:

1. The applicant is not entitled to non-earner benefits.
2. The applicant is not entitled to interest on the overdue payment of benefits.
3. The applicant is not entitled to an award under Section 10 of Regulation 664.

ELIGIBILITY FOR NON-EARNER BENEFITS

6Section 12(1)1.of the Schedule sets out the criteria the applicant must meet in order to be entitled to an NEB. The criteria are:

• She must suffer an impairment as a result of the accident.
• She must suffer a complete inability to carry on a normal life as a result of the accident and within 104 weeks of the accident.
• She must not qualify for income replacement benefits.

7The Schedule² provides that a person suffers a complete inability to carry on a normal life as a result of the accident if 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. Impairment for the purposes of the Schedule³ means a loss or abnormality of a psychological, physiological, or anatomical structure of function. The applicant has the burden of proof to establish that she meets these requirements.

8The parties agree that the Ontario Court of Appeal case of Heath v. Economical Insurance⁴ (“Heath”) is the authoritative case with respect to the test to be applied in determining entitlement to non-earner benefits. Heath confirms the criteria that applicant must meet to be entitled to a NEB and provides guidance on the analysis that must be done to determine whether a person suffers from a complete inability to carry on a normal life as a result of an accident.

Did the Applicant sustain an impairment as a result of the accident?

9The applicant was a back-seat passenger in car that was struck while it was stopped in a round-about. The police did not attend at the scene and the applicant did not seek immediate medical attention. The applicant did not have a family doctor at the time of the accident and went to a walk-in clinic. Her complaints were a head injury, neck shoulder and back pain⁵. The applicant also complains of headaches, dizziness, poor memory, anger issues⁶ and the inability to concentrate and communicate properly.

10For the reasons provided below I am satisfied that the applicant sustained impairments as a result of the accident.

Pre-Existing Injuries

11The respondent argues that the applicant has failed to put forward sufficient medical evidence to prove that but for the accident she would not experience ongoing back pain, neck pain and headaches⁷. The respondent submits that prior to the accident the applicant suffered from pre-existing back pain, neck pain and headaches⁸.

12While the applicant submits that prior to the accident she did not suffer from the injuries she reported after the accident⁹ the following evidence satisfies me on the balance of probabilities that applicant had back and neck issues prior to the accident:

• The Health Care Practitioner who completed the Disability Certificate¹⁰ for the applicant indicates that the applicant had suspected osteoarthritis of her neck and low back which limited her ability to perform daily activities such as cooking, cleaning, personal hygiene, dressing herself and dependant care.
• The Insurance Examination (IE) report of Dr. H.¹¹ states that the applicant reported a prior history of lower back pain due to a childhood injury. According to Dr. H., the applicant reported that her pain improved with exercise and at times, with increasing pain to her lower back, she would limp, but she was still able to work at a cleaning job.
• The reporting letter from Dr. P.M. a neurologist to the applicant’s family physician states that the applicant reported a childhood back injury.
• The psychological report of Dr. P.¹² provides more detail of the applicant’s childhood injury which the applicant reported as a “lumbar strain”. The applicant reported to Dr. P that she experienced chronic lower back pain from the incident which was manageable and rarely required medication.
• A cervical spine MRI that shows degenerative changes at C4 to C7 levels.¹³ The report states that this clinical finding is significant and correlated to the applicant’s pain and symptoms affecting her neck and bi-lateral shoulders. The findings also point to a suspected left C-6 nerve root impingement stemming from lateral stenosis at the C5-C6 level.

13For the reasons provided below I find that the applicant’s pre-existing back injuries were exacerbated by the accident and I am satisfied on the balance of probabilities that but for the accident she would not have experienced the ongoing neck pain and back pain The applicant readily reported her prior issues to health care practitioners who examined her following the accident. For that reason her submission that prior to the accident she did not suffer from the injuries she reported after the accident is troubling and affects the weight that I give to her evidence.

14There is also evidence that the applicant has a brain meningioma¹⁴. I have no evidence, however, that her brain lesion is related to the accident or affects in anyway her memory or her ability to function.

Injuries from the Accident

15I am satisfied on the balance of probabilities the applicant’s pre-existing back issues were exacerbated by the accident¹⁵ and that applicant suffered from headaches as a result of the accident which impaired her ability to function. I rely on the following evidence to reach this conclusion:

• The CBI’s physiotherapist’s in-take record¹⁶ diagnosing a whiplash associated disorder (WADII) concussion, sprain, strain of her left shoulder and sprain, strain of her thoracic spine.
• A symptom evaluation questionnaire completed by the applicant ten days after the accident indicating that in addition to her strains and sprains she was experiencing symptoms of pressure in the head, feeling not right, feeling slowed down, confusion drowsiness, more emotionally, irritable.¹⁷
• The Disability Certificate¹⁸ indicating headaches, whole body pain, anxiety, dizziness and injuries, dizziness and exhaustion.
• The Insurance Examination (IE)¹⁹ of physiatrist Dr. H. confirming a diagnosis of concussion.
• The affidavit²⁰ and oral testimony of C.Y. indicating that the applicant became very moody and irritable following the accident.
• The applicant’s affidavit and oral evidence that she experienced headaches, confusion, and was more emotional and frustrated.

Does the applicant suffer a complete inability to carry on a normal life as a result of the accident?

Comparison of Activities and Life Circumstances Before and After the Accident

16Heath establishes that generally the starting point in answering this question is to compare the applicant’s “activities and life circumstances” before the accident to their “activities and life circumstances” after the accident. An examination of the activities and life circumstances prior to the accident requires an assessment of all of their activities over a reasonable period prior to the accident.

17In considering whether the accident prevented the applicant from substantially engaging in all the activities she normally engaged in before the accident Heath allows that greater weight may be assigned to activities that the applicant identifies as being important to her life.

18According to Heath it is not enough for the applicant to identify that there were changes in post-accident life but rather that the changes are continuously preventing her from engaging in substantially all of the activities of her pre-accident life. She must prove inability or incapacity of the requisite nature extent or degree that remains uninterrupted.

19Heath directs that I must look at the activity as a whole. Persons going through the motions cannot be said to be engaging in the activity.

20The applicant’s evidence is that prior to the accident she was a full-time homemaker for her husband, her daughter, her daughter’s partner and her 5 year-old granddaughter. She was solely responsible for most of the household chores including shopping, meal preparation, laundry, pet care, lawn, gardening and snow removal. She also was responsible for payment of household bills. The applicant cared for her granddaughter’s in the morning before school and after school. She would make her breakfast, pack her lunch, and make sure she brushed her teeth, combed her hair and did her homework. She walked the child to and from school each day.

21The applicant argues that her impairments from the accident continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. She identifies care of her granddaughter, care of her husband, reading and gardening as the activities that are important to her in life. She argues that she has been fatigued, and unable to focus properly or concentrate since the accident. Although she continued to provide care for her granddaughter, look after pets and her household duties after the accident the applicant submits that she was going through the motions and not engaged in the activities. She estimates²¹ that for the first year after the accident she was only able to get 20-25% of her work done and one year after the accident is able to get 40-50% of the work done

22In addition to her own affidavit²² which compares her daily routine before and after the accident and her husband’s affidavit²³ the applicant relies on the following reports to show her life circumstances before and after the accident:

• Reports of occupational therapist, T.O.²⁴ (December 7, 2016)
• Psychological Assessment of Dr. P²⁵ (November 17, 2017)

23I have reviewed the evidence of the applicant’s activities and life circumstances before and after the accident. I find that the applicant has not established on the balance of probabilities that her impairments from the accident continually prevent her in engaging in substantially all of the activities in which she engaged before the accident for the following reasons.

Personal Care

24The applicant remained independent in all aspects of her personal care.

Housekeeping/ Home Maintenance

25The applicant’s affidavit evidence of the changes in her activities and life circumstances after the accident is not consistent with the reports she made to the two occupational therapists who conducted functional assessments. I prefer the evidence of activity levels the applicant reported to the occupational therapists because both of the occupational therapists report a similar level of functioning by the applicant.

26The functional assessments of T.O. and J.S.²⁶ review lists of activities and the degree to which the applicant participated in them prior to and after the accident.

27From my review of this evidence I find that snow removal and lawn maintenance are the only two household tasks that the applicant reports she did “most of it” prior to the accident which she has not done at all since the accident. Neither of these activities is identified by the applicant as being important to her.

28Both of the assessments leave no doubt that the applicant is able to engage in substantially all of her pre-accident housekeeping activities. The applicant reported²⁷ to J.S. that:

• She does not do as much dusting, vacuuming or floor washing as she used to do but still does some.
• She still wipes counters and cleans the stove and washes dishes.
• She can’t wash the shower out any more but rinses the tub
• She washes the sink and the toilet.
• She gets help with garbage removal but puts out the recycling
• She was doing 75% of the meal preparation
• She still goes grocery shopping by takes a list and get a ride
• The guys do the laundry; she helps hang it out and take it in
• She does not cut the grass anymore
• She does not rake but still picks wood for the fire and weeds
• She gardened with help. She planted the tomatoes but her husband turned the soil.
• She still looks after her pets but her daughter bathes them

29Two examples of inconsistences in the evidence are:

• In her affidavit the applicant swears that she did not sweep the floors for three months while she reported to both therapists that she swept the floors.
• In her affidavit the applicant swears that she did not wipe counters for nine months while eight months after the accident she reported to occupational therapist J.S. that she wiped counters.

30There is no evidence to corroborate the applicant’s self-reports of her activities before and after the accident except for the evidence of her husband. C.Y. Under cross-examination C.Y. agreed that he was unable to testify with respect to the applicant’s activity on weekdays as he worked nightshifts and was not home on weekdays.

31C.Y. was only able to corroborate that after the accident he did his own laundry and some laundry for the applicant and that he did most of the grocery shopping for the first year after the accident.

32C.Y.’s evidence is contradictory to the self-report that the applicant made to both occupational therapists. She told T.O. that she split laundry loads and made more frequent trips while she told J.S. that she helped hang laundry out and take it in.

33With respect to grocery shopping the applicant told J.S: ”I still go. I have a list and take my time a little more I used to. They usually drive me”²⁸

34The report of occupational therapist T.O.²⁹ which was done within a month after the accident identifies meal preparation and bathroom cleaning as the only two areas of housekeeping and home maintenance that the applicant required assistance with after the accident. T.O. does note that the applicant’s stamina was limited for some activities such as dusting, laundry and floor care. She does not provide an opinion that the applicant suffers a complete inability to carry on a normal life after the accident and I do not find anything in her report that supports this conclusion.

35Occupational therapist, J.S., provides the opinion while the applicant had not resumed all aspects of her pre-accident housekeeping functions her performance during the assessment and her level of reported function did not lead her to conclude that the applicant suffers a complete inability to carry on a normal life.

Childcare

36The applicant continued to provide before and after-school care for her granddaughter which is one of the activities she identifies as being most important to her and which took up a good part of her day. While she reports forgetting the backpack on one occasion and arriving late at the school at times she provides no evidence to corroborate that she struggled with this task or that her family questioned her ability to continue to provide childcare.

Social and Recreation

37The applicant has not provided any details of her social life before the accident to allow me to conclude that her social life was affected by the accident. She reported to both occupational therapists that her social life is mostly family and she reported to J.S. that she was still seeing her family.

38While C.Y. states in his affidavit that the applicant was no longer able to drive to see his ailing mother after the accident. The December 5, and December 7, 2016 clinical note and records (CNRs) of the CBI³⁰ indicate that the applicant made trips to visit her mother-in-law in Bancroft two weekends in a row shortly after the accident.

39The applicant took a 12 day trip to visit her mother in Newfoundland in the summer of 2017. The applicant reported to occupational therapist J.S that she enjoyed the trip.

40During her assessment by J.S. the applicant indicated that she was doing a lot of “running around” and had gone camping in Huntsville.

41There is no evidence to corroborate the applicant’s report that she has had difficulty reading since the accident.

Psychological Report

42The report of psychologist Dr. P. provides the only medical opinion that the applicant suffers a complete inability to carry on a normal life as a result of the accident.³¹ Dr. P. did not assess the applicant until almost a year after the accident and after the first case conference in this matter took place. She qualifies her opinion by stating that the contents of her report are based on the applicant’s self-report and that any inconsistencies in her self-report would influence her impression and conclusions.

43Dr. P. states that she had the opportunity to review the applicant’s document brief but she does not comment on any of the earlier functional assessments.

44I give little weight to Dr. P’s report because there are inconsistencies in the applicant’s reports to earlier assessors which by Dr. P’s own admission calls into question her findings. I also give little weight to Dr. P’s opinion because she does not do a detailed assessment of the activities that the applicant did before the accident which she was unable to do after the accident. She does not recognize that the applicant continued to be a care giver for her granddaughter after the accident.

45The main inconsistency I find is that the applicant reported to Dr. P. that she was “utterly reliant on her loved ones for her care and home management”. The applicant does not state in her affidavit that she was dependent on anyone for her personal care and the occupational therapy assessments of T.O. and J.S. confirm that the applicant was independent with her care. The assessment of T.O. indicates that the only personal care issue she had was difficulty in brushing her own hair and cutting her toe nails.

Emotional State

46There is a lack of evidence linking the applicant’s anxiety after the accident to her impairments and I am not satisfied that the applicant’s emotional state after the accident prevented her from engaging in substantially all of her activities in which she engaged prior to the accident.

47While C.Y.’s evidence corroborates the appellant’s evidence that she was more emotional, irrational and angry he does not connect her emotional state to her ability to engage in activities. There is also evidence that the applicant experience anxiety issues before the accident. She reported to J.S. that four months before the accident she had some chest pains that were attributed to anxiety³².

48I also note that the April 20, 2017 Clinical Note and Record³³ of her family doctor indicates that she was attending physio with good results and that she was well and was otherwise doing well. I am unable to find anything in the CNRs of her family doctor to support a finding that the applicant suffered a complete inability to carry on a normal life as a result of the accident.

49For the reasons provided above I do not find that the applicant suffers from a complete inability to carry on a normal life as a result of the accident.

Interest

50Having determined that there are no NEBs owing there can be no interest owing on overdue benefits.

Award for Unreasonably Withheld or Delayed Benefits

51Section 10 of Ontario Regulation 664³⁴ allows me to award a lump sum payment of up to 50 per cent of the amount to which a person is entitled at the time of the award if I find an insurer unreasonably withheld or delayed payment of benefits or interest.

52Having determined that there are no NEBs owing to the applicant I am unable to find that the respondent unreasonably withheld or delayed payments of benefits to the applicant.

ORDER

53For the reasons provided above I Order that the application be dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2S. 7, O. Reg. 34/10
3. 3S. 3 O. Reg 34/10
4. 42009 ONCA 391, 2009, 95 O.R. (3d) 785
5. 5Page 2, Applicant’s Written Submissions
6. 6Page 9, Applicant’s Written Submissions
7. 7Paragraph 44, Respondent’s Written Submissions
8. 8Paragraph 41, Respondent’s Submissions
9. 9Paragraph 7, 8 Applicant’s Written Reply to Respondent’s Written Submission
10. 10Tab C, Respondent’s Supporting Documentation
11. 11Page 6, Tab H, Respondent’s Supporting Documentation
12. 12Tab Q , Respondent’s Supporting Documentation
13. 13Tab G, Applicant’s Documents
14. 14MRI report dated January 3, 2018 Tab F, Respondent’s Supporting Documentation
15. 15Exhibit G, Applicant’s Documents
16. 16Exhibit B, Applicant’s Documents
17. 17Exhibit C, Applicant’s Documents
18. 18Tab C, Respondent’s Supporting Documentation
19. 19Exhibit I, Applicant’s Documents ; Tab H, Respondent’s Supporting Documentation
20. 20Affidavit of C.Y. sworn December 3, 2017, Exhibit J, Applicant’s Documents
21. 21Exhibit J, Applicant’s Documents
22. 22Exhibit S, Applicant’s Documents
23. 23Exhibit J, Applicant’s Documents
24. 24Tabs C and D Applicant’s Documents
25. 25Exhibit H, Applicant’s Documents; Exhibit Q, Respondent’s Supporting Documentation
26. 26Tab I, Respondent’s Supporting Documentation
27. 27Page 10, 11, Tab I, Respondent’s Supporting Documentation
28. 28Page 11 Insurer’s Occupational Therapy In-Home Examination , Tab I, Respondent’s Supporting Documentation
29. 29Exhibit D, Applicant’s Documents
30. 30Exhibit B, Applicant’s Documents
31. 31Tab Q, Respondent’s Supporting Documentation
32. 32Page 7, IE of J.S., Tab I, Respondent’s Supporting Documentation
33. 33Exhibit E, Applicant’s Documents
34. 34Regulation 664 made under the Insurance Act, R.R.O. 1990 C.I.8 as amended