D.R. vs. Aviva Canada, 2019 ONLAT 18-007848/AABS
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:
D.R.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Robert Watt
Appearances:
For the Appellant:
[D.R.], Applicant
Dale Rosenberg, Counsel
For the Respondent:
Kathleen Mertes, Counsel
Court Reporter:
Conner McTaque
Heard: In-Person: Hearing:
June 3, 2019
OVERVIEW
1The applicant was involved in an automobile accident on August 20, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010. The applicant was denied certain benefits by the respondent and, in response, applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2An in-person hearing was scheduled for June 3, 4, 5, 2019 in Toronto.
ISSUES IN DISPUTE
3The sole issue in dispute was agreed to as follows:
(i) Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185.00 per week for the period from February 26, 2017 to date and ongoing, and denied by the respondent on February 22, 2017?
RESULTS
4The applicant is not entitled to the claimed non-earner benefit.
BACKGROUND
5On August 20, 2016, the applicant was a front seat passenger in a car that was struck both in the front and rear-ended at the same time. The air bags deployed, and the applicant was taken to the Humber River Hospital. There, he reported pain in his head, neck, back and left leg. He was advised to attend physiotherapy.1
6On August 23, 2016, he attended his family physician Dr. Friesner, to whom he reported pain and depression. Dr. Friesner completed an OCF-3 on December 19, 2016, indicating that the applicant suffered a complete inability to carry on a normal life.2
7From August 31, 2016 onwards, the applicant attended physiotherapy at Paramount Rehabilitation to deal with the pain in his neck, shoulders, back, and legs. Like Dr. Friesner, the physiotherapist there indicated that the applicant suffered a complete inability to carry on a normal life.3 The applicant also saw Dr. Charles, a chiropractor, who diagnosed the applicant with chronic pain disorder and shoulder strain.4
8Since the accident, the applicant has been seeing a psychologist, Dr. Hill, who reported on January 11, 2017 that the applicant has been unable to cook, clean, shop, do laundry, or make his bed. Dr. Hill diagnosed the applicant with major depressive disorder and chronic pain syndrome.5 This condition was also confirmed by Dr. Mik, psychiatrist, on May 23, 2018, when the applicant attended for a consultation,6 and by Dr. Goldstein, IE physician, on January 24, 2019.7
9On March 22, 2018, the applicant was the subject of an attendant care assessment (IE) with Occupational Therapist Naomi Gallor. She reported that the applicant needed at least 12 hours per week of housekeeping/home maintenance assistance.8
Pre-accident activities
10The applicant has a Grade 8 education and engaged in various labour-related jobs for approximately 15 years. He opened his own restaurant in 2008 which he closed in 2011 for financial reasons. He was involved in an accident in 2005 at work and developed lower back pain, shoulder pain, headaches, and dizziness which never went away. The applicant applied for and has received Ontario disability support benefits since 2011.
11The applicant admitted that his level of functioning pre-accident was poor but that he would attend functions, spend time with his children and play mini golf with them, go to the library, play dominos with his friends, vacuum and sweep the floor, and go to the track. He would also play in the odd pick-up soccer game with his friends. He was stated that he was able to clean his home, go grocery shopping, and cook for himself.
Post-accident activities
12The applicant’s position is that post-accident he has been rendered non-functioning, with his psychological injuries affecting his mental well-being. As a result, he has no motivation to do anything other than sit at home. He no longer sees his children, does not clean his apartment (he relies on his girlfriend to do that), orders food in a lot instead of cooks. He does not see his friends, does not engage in sports, and spends more time in his apartment. He stated that he does continue to buy his groceries, but drives only out of necessity, including going to therapy.
13The Respondent’s position is that the applicant has not suffered a complete inability to carry on a normal life as a result of the accident. The respondent relies on the IE reports of Dr. R. Ratti, psychologist, and Dr. R. Lexier, orthopaedic surgeon, both dated February 12, 2017. Both doctors concluded that the applicant was not suffering from a complete inability to carry on a normal life. Their addendum reports, dated October 25, 2017, came to the same conclusions.9
14Dr. Ratti noted that the applicant indicated that he was able to complete some cleaning, cooking, dishwashing, and grocery shopping with some restrictions due to pain.10 The applicant denied any caregiving concerns and has maintained his relationship with his girlfriend.11
15Dr. Lexier noted that the applicant advised him that he was able to take public transit and could perform his activities of daily living around his home, but not like before.12
Oral evidence
16The applicant’s evidence on direct examination and cross-examination conflicted, making it difficult to determine his usual activities and life circumstances both pre-accident and post-accident. For example, in direct examination, he indicated that he was involved in care-giving activities with his children (now 11, 19, 22, and 24), taking them to the park, playing sports, going swimming, teaching his daughter to play tennis, and that he played the odd sport and went to the gym. However, on cross-examination, he admitted that he couldn’t do these activities pre-accident. He admitted that none of the children lived with him pre-accident, that he didn’t teach his daughter tennis but rather wanted her to learn tennis, that he merely supervised and didn’t play with the children at the park, and that he couldn’t remember pre-accident how many times he used the gym and hadn’t played sports for several years.
17The applicant testified that his relationship with his children after the accident was strained. His children “no longer look at me as before” because of his inability to provide for them financially”. The applicant’s financial situation after the accident was the same as pre-accident, as the applicant was on and continues to be on Ontario disability support benefits.
18In his Health Status Report dated April 2, 2015 (prepared for the applicant’s application for ODSP benefits), Dr. Friesner noted that the applicant was suffering from lower back pain, cerebral concussion with headaches, dizziness and depression. Dr. Friesner noted that the depression affected the applicant’s functioning and that the applicant had trouble with day-to-day functioning, which was expected to last a year.13 In the Activities of Daily Living Index in the report, it was noted that the applicant had severe functional limitations with most of his self-care activities.14
19The applicant provided no evidence as to what activities he was unable to do post motor vehicle accident (MVA) as opposed to pre-MVA, but only indicated that he didn’t want to do anything due to emotional/mental issues and physical pain.
Surveillance Evidence
20The surveillance report, dated December 29, 2017 (conducted on October 16, 18, 19 20, 27 31, November 24, December 4,8, 11, 14), shows the applicant driving, attending Freedom Mobile, banking in person, and purchasing items at No Frills using no assistive devices or showing any signs of disability.15
21The surveillance report dated April 12, 2019 shows the applicant driving, attending at No Frills, socializing with a group of men at the Woodbine Racetrack and purchasing items at a Subway sandwich shop and at Rustic Bakery.16
Analysis
22Section 12 (1) of the Schedule states that an insured person is entitled to a non-earner benefit in the amount of $185.00 per week if she or he sustains an accident-related impairment that causes a complete inability to carry on a normal life. Section 3(7)(a) defines a complete inability to carry on a normal life as an “impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
23The Court of Appeal for Ontario’s decision in Heath v. Economical Mutual Insurance Company17 provided the following guidance for applying this standard:
a. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post- accident;
b. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration will depend on the facts of the case.
c. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;
d. The applicant must provide that his /her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted;
e. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not account as “engaging in” that activity;
f. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.
24The onus is on the applicant to show, on a balance of probabilities, that, as a result of the accident, he suffers from a complete inability to carry on a normal life. There has been no evidence put forth properly analyzing the activities that the applicant did pre-accident compared to what he could not do post-accident. Most of the applicant’s issues pre-accident are the same post-accident without any evidence to show how the pre-accident injuries were, if at all, exacerbated by the accident at issue here. Moreover, and as explained above, the applicant’s evidence on direct examination was contradicted on cross-examination. On this basis alone, I find I find that the applicant has not proven entitlement to NEB on a balance of probabilities.
25I accept the evidence put forth in the medical reports of Dr. Ratti and Dr. Lexier over the other medical reports. The surveillance evidence supports what the applicant stated to these doctors, in their reports, about his ability to function, contradicting what Dr. Friesner and Dr. Charles indicated about his complete inability to carry on a normal life. Those medical reports (Dr. Ratti and Dr. Lexier) indicated that the applicant reported that he was able to complete some cleaning, cooking, dishwashing, and grocery shopping with some restrictions due to pain. The applicant denied any caregiving concerns and maintained his relationship with his girlfriend. The applicant advised Dr. Lexier that he was able to take public transit and could perform his activities of daily living around his home but not like before. The surveillance evidence showed the outside activities of the applicant which confirmed his statements made to the doctors relating to outside post-accident activities. The applicant also gave no oral evidence to explain the statements made to the doctors in their reports, about his ability to function post-accident.
26I therefore find that the evidence before me shows that the applicant did not sustain an accident-related impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
ORDER AND CONCLUSION
27The applicant is not entitled to the claimed non-earner benefit.
Released: October 8, 2018
___________________________
Robert Watt
Adjudicator
Footnotes
- Humber River Hospital ER Excerpts Applicant Brief Tab D-p 487,488,494,499 500
- Dr. Freisner CNR Excerpts Tab D p.579,580,582, 588, 647,649,657,658,659,688,689
- Phsiofix CNR Excerpts applicant’s brief Tab D(15) p780,787,797,798/Paramount Rehabilitation Centre Applicant’s Brief Tab D(7) p161-166,300-304,389,390, 234-237
- Dr. Charles CNR Excerpts-Applicant’s Brief Tab d914) p755,766,768
- Dr. Hill’s report Applicant’s Brief Tab D(3) p 142-152
- Humber river hospital ER Record Tab D(11) p540-544
- Applicant’s Tab C(5) p135,136
- Attendant care assessment applicant’s brief Tab d990 p392-414
- Tabs D2 and D4 of the Respondent’s Brief of documents
- TabD3 Respondent’s Brief of Documents p 90-94
- Ibid
- Tab D1 of Respondent’s Brief p74-79
- Tab E1 Respondent’s brief of document p136
- Tab E! of the Respondent’s Document Brief at p142
- Tab F2 Respondent’s Brief of Documents
- Tab f3 of Respondent’s document brief
- 2009 ONCA 391 at para 15