Tribunal File Number: 18-001560/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
E.A.U.
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Kimberly Parish
APPEARANCES:
Counsel For the applicant: George Siotas, counsel
Counsel for the respondent: Victoria L. Fraser, counsel
Interpreter: Jill Kalkam (Turkish language)
HEARD: By written submissions dated September 20, 25, October 4, 2018, and in- person on October 29, 2018
OVERVIEW
1The applicant was injured in an automobile accident (“accident”) on November 26, 2015, and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2The applicant applied for a non-earner benefit which was denied by the respondent. The matter proceeded to a case conference, but the parties were unable to resolve the issue in dispute.
ISSUES
3The disputed claims in this hearing are:
(i) Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 26, 2016 to date and ongoing?
(ii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
(i) Based on the evidence before me, and on a balance of probabilities, I find the applicant is entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of May 27, 2016 to date and ongoing.
(ii) The applicant is entitled to interest on the overdue payment of benefits in accordance with s. 51 of the Schedule.
BACKGROUND
4The applicant was 22 years old at the time of the accident and was the sole occupant and driver of a vehicle which was hit from the side while turning left at an intersection. The other vehicle was travelling approximately 80 km/hr. The applicant sustained a head injury and was diagnosed with a concussion. At the time of the accident, the applicant was not working or attending school.
5The applicant’s position is that she sustained physical, psychological, emotional, and cognitive injuries as a result of the accident. Prior to the accident the applicant maintains she was a happy and sociable person. Following the accident, she has become socially isolated from friends, has a strained relationship with her family, suffers from panic attacks, driving anxiety, sleeps only a few hours per night, and experienced significant weight loss. The applicant has become depressed and suffers from ongoing pain and headaches. Additionally, she maintains she suffers from a complete inability to carry on a normal life as a result of the accident.
6The respondent maintains that the applicant was not working or going to school prior to the accident. Further, it is the respondent’s position that many of the physical and emotional impairments; including sleep problems, existed prior to the accident. The respondent affirms there is no significant difference between the applicant’s activities of daily living prior to and following the accident. The respondent contends that the applicant does not meet the test for non-earner benefits.
ANALYSIS
7I find that the applicant is entitled to a non-earner benefit as she has proven on a balance of probabilities that she suffers a complete inability to carry on a normal life as a result of the accident. I find the following accident-related impairments sustained by the applicant significant: chronic headaches, low back and neck pain, panic attacks, verbally lashing out at family members, disturbed sleep, she is socially withdrawn and has a lack of appetite contributing to significant weight loss. She also has driving anxiety which causes her to urinate while riding in a car. More than three years have passed since the accident and I find the above accident-related impairments have prevented her from engaging in substantially all of her pre-accident activities from a qualitative perspective.
8The test for entitlement to a non-earner benefit (“NEB”) is set out in section 12 (1) of the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7) (a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the 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.
9The leading authority which sets out the test which needs to be considered in determining entitlement to a NEB is the case of Heath v. Economical Mutual Insurance Company1 (“Heath”). It is necessary to compare the applicant’s activities before and after the accident. Greater weight may be given to the activities which were most important to her. If some activities are still engaged in post-accident, they must also be assessed from a qualitative perspective.
The Applicant’s Life Prior to the Accident
10The applicant testified that she currently resides at home with her mother and her fiancé. At the time of the accident, she was not attending school, and had not worked since 2012. She was previously enrolled in an Early Childhood Education Program, and in 2014 she was enrolled in a Medical Office Administration Program at [College]. The respondent referenced a clinical note and record (“CNR”) from the applicant’s family doctor, Dr. Sen, dated October 24, 20122 which noted she was expelled from that program. The applicant provided an explanation at the hearing and stated she withdrew from the program. She wanted to become an esthetician but did not pursue this because she was looking after her father who had Cancer and passed away in January 2016. He had been sick for 13 years and his Cancer worsened in 2015. She was close to her father and assisted with taking him to his medical appointments, administering medications, preparing meals, and grocery shopping.
11The applicant was social and independent prior to the accident. She would often spend time with her friends, go shopping, to the movies, out to bars, and hang out with her friends at their houses. She enjoyed attending parties and going to Turkish community events with her friends. Further, she went camping with her friends and took a trip to Niagara Falls and Snow Valley ski resort. A year prior to the accident the applicant went to Turkey, Germany, and New York City. The applicant utilized various social media sites including: Facebook, Instagram, and Twitter.
12The applicant resided with her mother and assisted with the household chores; including cooking, cleaning, and laundry. She also assisted with the housekeeping duties at her older sister’s house as her sister has asthma. The applicant stated she had a close relationship with her mother and sister prior to the accident. Her mother described her as “nice and outgoing” prior to the accident and that she had a good relationship with both her sisters. The applicant’s mother stated her daughter (the applicant) would go over to her older sister’s house almost every day and would sometimes stay over for 1-2 nights. The applicant’s older sister stated that she and her sister (the applicant) were quite close prior to the accident. The applicant would come over to her house often and they would talk. Her older sister stated her sister would take her daughter (applicant’s niece) who was 11 years old in 2015 to the mall and the movies. The applicant’s older sister stated that her sister was close to her niece.
13Prior to the accident, the applicant stated she used to sleep 9 to10 hours per night. In 2012, the applicant moved out of her parents’ home to live with her older sister for a month as the applicant was arguing with her parents over her relationship with a prior boyfriend. This resolved and the applicant moved home again. Consistent testimony was provided by the applicant, her mother, and her older sister confirming this.
14The only health issue experienced by the applicant prior to the accident was in 2012. This is supported by Dr. Sen’s CNR dated October 24, 2012 which noted: difficulty sleeping, dizziness, panic attacks, low mood, and anxiety. The applicant was diagnosed with anemia and received 4 injections and all of her symptoms noted above relating to the anemia had resolved. The applicant stated she had no psychological counseling or treatment prior to the accident. At the time of the accident the applicant weighed approximately 175 pounds.
The Applicant’s Life Following the Accident
15The applicant gave the following testimony with respect to her life post-accident:
i. sleeps 2-3 hours per night
ii. ongoing depression
iii. pain on the left side of her body; including back and neck pain, and headaches
iv. mood swings
v. poor concentration
vi. anxiety and panic attacks
vii. no longer socializes with friends and avoids crowds and noisy spaces
viii. spends most of her time at home
ix. only drives short distances in a car to pick-up cigarettes, or coffee; urinates in the car when she is a passenger and is in traffic or travels longer distances
x. no longer assists with cooking, housekeeping, grocery shopping, or doing her own laundry.
xi. fear of confined spaces, i.e. elevator, physiotherapy treatment room
xii. has emotional outbursts towards her mother and fiancé and will throw things or tear her clothes when she is upset
xiii. no longer has a relationship with her sister, or her niece
xiv. currently weighs 118 - 120 pounds and has a poor appetite
xv. smokes more cigarettes per day
16The evidence supports a significant change in the applicant’s activities of daily living which I find are consistent with the testimony provided by the applicant, her mother, sister, and fiancé. I found all of them to be credible witnesses. The applicant did not complete two college programs as she stated she was not interested in pursuing them. The applicant wanted to return to school to become an esthetician but she did not pursue this as she was caring for her dying father. This information was corroborated by her older sister. Further, the applicant’s pain was significant enough that Dr. Sen increased the applicant’s prescription dosage for Cymbalta. The evidence provided within the reports of Dr. Bodenstein, Dr. McCutcheon, and Ms. Mills all note the applicant is only able to sleep 2-3 hours per night. This aligns with the testimony provided by the applicant, her fiancé, her mother, and her sister.
17The applicant no longer socializes or goes out with friends. The panic attacks, sleep problems, anxiety, and low mood were noted at the time the applicant was anemic. These behaviours were otherwise non-existent prior to the accident according to the applicant’s mother and sister. With the exception of anemia, I find the evidence strongly supports the applicant was happy, social, and healthy; both physically and psychologically prior to the accident. Since the accident, the applicant is no longer able to enjoy the activities which she participated in prior to the accident. I do not attribute these changes to the death of her father who was ill for several years prior to the accident, but find they are as a result of the accident.
18The testimony of the applicant’s mother supported changes following the accident. Her daughter no longer assists with the housekeeping or cooking and complains of headaches, low back and neck pain. When her daughter gets upset she tears her clothes and will hit her mother. Her daughter now sleeps very little and has panic attacks almost daily. She stated that her daughter hardly eats since the accident and has lost a lot of weight.
19Further changes in the applicant’s behaviour post-accident were supported by the testimony of her older sister. Since the accident, she stated the applicant (her younger sister) has become less social, and only leaves the house to go out locally. Further, since the accident, her younger sister now yells, hits, screams, is forgetful, and smokes more cigarettes. The applicant’s niece who is now 14 years old no longer wants to see her aunt because of her behaviour. The applicant’s sister expressed safety concerns regarding her daughter being around her sister. She also confirmed the applicant had lost a lot of weight over the past seven months.
20The applicant and her fiancé met in March 2016 and they reside with her mother. He stated the applicant gets very little sleep and smokes a lot of cigarettes. He stated their relationship involves a lot of arguments, she yells and hits him while he is driving, and they have not had sexual relations in about nine months. He described that she often complains of back pain and headaches and cries every day. There are panic attacks she experiences almost every day and she frequently urinates while riding in his car. They will go out for short periods of time which include: taking her to medical appointments, and picking up a coffee, or pizza. Her fiancé stated she doesn’t have any friends.
21Surveillance of the applicant was conducted on the dates of August 1, 2 and 3, 2018. It shows the applicant leaving her house by car to go to the store, or to a drive-thru. The applicant returns home after a short period of time. The surveillance report of August 1, 2018 noted the applicant and her fiancé were in a vehicle at a gas station and they appeared to be having an argument while her fiancé was fueling the car. The applicant and her fiancé both testified that they argue a lot. I find the surveillance evidence strongly corroborates the testimony provided by the applicant and her fiancé as it showed the applicant driving short distances locally for short periods of time to go to a local store, or drive-thru before returning to her home.
22In support of her claim for NEBs, the applicant relies on a disability certificate (“OCF-3”), issued by Dr. Sen, dated May 21, 20163, Dr. Sen noted the following regarding the applicant’s injuries: “Soft Tissue Complaints, Neck pain, Chest pressure, Lower back, Left hip, Left Leg, Concussion, Severe Anxiety Depression and Driving Phobia. In Dr. Sen’s opinion the applicant suffers a complete inability to carry on a normal life and felt the applicant was suffering from increased anxiety as a result of her pain. Post-accident, the applicant was prescribed: Cymbalta for pain and Doxepin to assist with pain and sleep. The prescribed dosage for Cymbalta increased to 90 mg in December 2017, and has further increased to120 mg in May 20184.
23Dr. Sen referred her to Dr. Clair, a psychologist whom she saw briefly from March – May 2016. The applicant did not want to continue treatment with Dr. Clair and requested Dr. Sen refer her to another psychologist. The applicant stated she had an increase in panic attacks that summer and remained confined to her bedroom. In September 2017 she saw Dr. Bodenstein, psychologist, who currently treats her psychological impairments. This explanation was provided by the applicant to explain why there was a gap in psychological treatment and I accept this explanation.
24I prefer the evidence contained within Dr. Bodenstein’s psychological report dated April 5, 20185 as it links the applicant’s lack of sleep to her emotional and cognitive symptoms which he then attributes to the accident. Dr. Bodenstein noted the applicant has difficulty performing household chores, sleeps a maximum of two hours nightly, argues frequently with her family and boyfriend (currently her fiancé), experiences panic attacks when she is traveling in a vehicle in traffic, discomfort in confined space and open crowded public space, difficulties with attention, concentration, memory, and decreased socialization with friends. Dr. Bodenstein noted the applicant’s father passed away several weeks after the accident but opined that the accident was “the straw that broke the camel’s back.” It was a significant stressor which overwhelmed her ability to cope and he concluded the applicant has a complete inability to carry on a normal life as a result of the accident6.
25In support of its denial of the NEB, the respondent relies on its multidisciplinary insurer examinations (IEs) 7 of Dr. Gianni Maistrelli, orthopedic surgeon, Dr. Kelly McCutcheon, psychologist, and Ms. Sharon Mills, occupational therapist. All of the assessors found that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident.
26I afford little weight to Dr. Maistrelli’s report as I find it is crucial when assessing entitlement to the non-earner benefit that a comparison of the applicant’s pre and post-accident activities be assessed as per the principles in Heath. Dr. Maistrelli did not do this. The report noted the applicant denied any improvement in her condition since the accident. Dr. Maistrelli noted there is a history of post-accident onset of a psycho-emotional overlay condition which may present a barrier to recovery, and that is outside of his area of expertise. This statement acknowledges the applicant’s recovery from the accident may be impeded despite the conclusions reached by Dr. Maistrelli that she sustained uncomplicated soft tissue injuries to her neck and lower back, and there was no evidence of musculoskeletal or neurological impairment as a result of the accident. He further opined that the applicant’s presentation was evident of “self-limitation pain behaviours and demonstrated several non-physiological behavioural responses to examination”. I find this statement dismisses any physiological findings without accounting for the psychological-emotional overlay condition which Dr. Maistrelli noted. The applicant’s psychological impairments are addressed below in the assessment by Dr. McCutcheon.
27I do not find Dr. McCutcheon’s conclusion reached in her psychological assessment report that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident is supported by her findings noted within her report. The report outlines the activities the applicant participated in prior to the accident and changes experienced by the applicant post-accident. Dr. McCutcheon diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident and noted the applicant’s post-accident activities included: independent with her self-care, willing and able to drive, she socializes, watches television, and uses a computer. Further since the accident, the applicant does not perform any household chores. This was something the applicant spent significant time engaging in prior to the accident. The applicant had reported to Dr. McCutcheon she barely sleeps and awakens frequently through the night due to pain. The OCF- 3 dated May 21, 2016 was reviewed by Dr. McCutcheon and it noted driving phobia and issues with sleep. The impact of the sleep deprivation experienced by the applicant several months post-accident, the driving phobia, and the exclusively sedentary activities primarily engaged in by the applicant post-accident do not seem to have been evaluated in relation to the impact on the applicant’s post-accident quality of life.
28I did not assign a lot of weight to the report of Ms. Mills who concluded the applicant demonstrated the functional ability to complete all of her pre-accident activities of normal living independently. She noted during the occupational therapy assessment that the applicant presented as pain-focused, self-limiting, declined to perform some functional tasks, and demonstrated poor effort i.e. pulling up on a medication lid instead of pushing down and turning the lid. Ms. Mills did reference the applicant’s pre-accident activities which included: washing dishes, doing laundry, ironing, making the beds, dusting, vacuuming and mopping. The applicant has not engaged in these activities since the accident but is independent with a majority of her self-care tasks. I find Ms. Mill’s findings inconsistent. The applicant self-rated her neck, pain back pain, and headaches as 6-8.5/10 and sleeps two hours per night. The applicant declined demonstrating the tasks of mopping/vacuuming and dusting but was observed demonstrating functional gripping and handling tasks and functional range of motion. It was concluded by Ms. Mills that the applicant demonstrated the functional ability to complete all of her pre-accident activities of normal living independently. However, I do not find the applicant’s sleep deprivation and her self-reported pain were adequately considered in the results of this assessment.
29I do not afford much weight to the reports of Dr. McCutcheon and Ms. Mills. Dr. McCutcheon noted the applicant no longer performs the household chores following the accident but continues to drive, watch television, and use a computer. Ms. Mills found during the occupational therapy assessment that the applicant presented as pain focused and was self-limiting with the tasks she performed. Further, Ms. Mills noted the applicant demonstrated she had the functional ability to complete all of her pre-accident activities of normal living independently. While I note that the applicant did drive, watch television, and use a computer prior to the accident, these are not physically demanding activities.
30Dr. McCutcheon and Ms. Mills reports reference the applicant’s lack of sleep following the accident but neither of them comments further regarding the impact of the sleep deprivation on the applicant’s activities of daily living. The OCF-3 of May 21, 2016 was referenced as being reviewed in Ms. Mill’s report and Dr. McCutcheon noted she reviewed Dr. Mills report. The OCF-3 noted the applicant experiencing driving phobia and indicated further investigation should be done through a sleep study. This provides evidence that the applicant was having issues with both driving and sleep several months prior to the assessments being done by Dr. McCutcheon and Ms. Mills.
31I find following the accident, the applicant suffers from impairments which continuously and substantially prevent her from carrying on the activities of daily living which she enjoyed prior to the accident. Therefore, I find that the applicant has a complete inability to carry on a normal life as a result of the accident and is entitled to a non-earner benefit in the amount of $185.00 per week from May 27, 2016, the date which the respondent received the OCF- 3.
CONCLUSION
32I find that the applicant is therefore entitled to receive the following benefits:
(i) The applicant is entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 27, 2016 to date and ongoing.
(ii) The applicant is entitled to interest on the overdue payment of benefits in accordance with s. 51 of the Schedule?
Released: February 25, 2019
__________________________
Kimberly Parish
Adjudicator
Footnotes
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
- Exhibit 1 Written Submissions/Document Brief of Insurer, tab 5
- Exhibit 4 - Document Brief of the Applicant, OCF-3 at tab 3
- Ibid, Medical Report of Dr. Sen, dated July 30, 2018, tab 5, page 3
- Ibid, Psychological Medical-Legal Assessment Report of Dr. Eyal Bodenstein dated April 5, 2018, tab 6
- Ibid, pages 17-18
- Supra, note 2 - tab 12