Tribunal File Number: 17-003841/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:
[The Applicant]
Applicant
and
Aviva Insurance
Respondent
DECISION
PANEL:
Craig Mazerolle, Adjudicator
APPEARANCES:
For the Applicant:
Aisha Suleman
For the Respondent:
Alexander Hartwig
HEARD:
October 18, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on April 17, 2015. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). When some of these claims were denied by the respondent, she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2For the reasons to follow, I find the applicant is entitled to payment for the non-earner benefit from January 5, 2017 to date and ongoing. Further, she is entitled to interest for this overdue payment.
ISSUES
3At the start of the hearing, the applicant informed the Tribunal that most of the issues identified in her original application had been resolved, i.e., the application of the Minor Injury Guideline and the disputed treatment plans.
4Therefore, the only remaining issue is the applicant’s request for the non-earner benefit (in the amount of $185.00 per week) for the period of November 25, 2015 to date and ongoing. She also requests interest.
5The respondent is requesting costs from the applicant.
INCLUSION OF DR. GLORIA MENESES’ RECORDS
6Before addressing the substantive issue before the Tribunal, I must first decide a procedural issue raised by the respondent. The respondent contends that a medical note (dated April 26, 2018) and medical records (covering the period of July 31, 2017 to April 19, 2018) from the applicant’s family physician, Dr. Gloria Meneses, should be excluded from this hearing.
7Since the applicant served these records with her written submissions on April 27, 2018, she is in contravention of the mandatory disclosure deadline in Rule 9.2 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure.2 This disclosure also runs afoul of the order from Adjudicator Purdy (dated September 17, 2017). As such, the respondent argues it “will be highly prejudiced if these last-minute documents are allowed to go before the [Tribunal]”. If the Tribunal does allow the inclusion of these records, the respondent then requests an adjournment.
8The applicant did not respond to this procedural issue during the hearing.
9After considering the respondent’s submissions, I have decided to accept the applicant’s documents. I have also declined to order an adjournment.
10Vice Chair Hunter’s order to amend the hearing format (dated March 1, 2018) also changed the disclosure deadline as follows [emphasis in original]: “Any exchange of outstanding productions are due by April 25, 2018.” This amendment demonstrates that the Tribunal anticipated document disclosure after the original deadline in Adjudicator Prudy’s order.
11Though the applicant still missed this later deadline, I do not find the prejudice against the respondent to be so great that exclusion of relevant, medical documentation is necessary. Not only was the delay minimal, but the respondent received these additional documents over a week before its written submissions were due. Further, as there has already been an adjournment to this hearing, another delay would not be in line with the Tribunal’s mandate to conduct proceedings in an efficient and expedient manner (namely, Rule 3.1 of the Rules).
NON-EARNER BENEFIT
12Section 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.”
13The Court of Appeal for Ontario’s seminal decision in Heath v. Economical Mutual Insurance Company provides the following guidance for applying this standard:
i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.
ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
iii. 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.
iv. 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.
v. “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 count as “engaging in” that activity.
vi. 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.3
14This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule, and—as with other benefit determinations—the onus is on the applicant to establish entitlement on a balance of probabilities.
Applicant’s Account of her Pre-Accident Activities
15Entitlement to a non-earner benefit is based on a comparison between an insured person’s pre- and post-accident activities. In line with the principles from Heath, this account cannot be a mere snapshot, but rather the Tribunal should be provided with a detailed narrative derived from a reasonable period of time before the accident. Therefore, during her testimony, the applicant described a typical, pre-accident day and then contrasted it with her life after the accident.
16Before the accident, weekdays would generally start at 6:30 a.m., with the applicant waking up and readying herself for the day. She would then help her adult son’s two children (who live with the applicant and her husband) get ready, including the preparation of their breakfasts and lunches. This morning routine would end when the grandchildren were picked up at 8:15 a.m.
17After the grandchildren left, she would then take some time for herself: be it going out for a coffee with a friend, taking a walk, or relaxing at home. She would then start doing stuff around the house until about 1:00 p.m., when she would make herself a light lunch (e.g., yogurt or fruit). An hour-long nap would follow lunch, before starting to prepare dinner for the family.
18The two kids would return home at 3:10 p.m., at which time she would help the younger child with reading and the older with homework. Dinner prep would take place during this time as well, because dinners usually took about 90 to 120 minutes to complete. In addition to the preparing the food, the applicant also helped the younger child eat her meal.
19Dinner normally ended around 6:30 p.m., at which time she would direct the children to start getting ready for bed. She would then take a 30 minute break to watch television before cleaning the kitchen. These after dinner tasks included: washing the dishes, mopping/sweeping the floor, and packing a dinner for her son. These tasks would end around 8:00 p.m.
20She would then relax with her husband for about one to two hours before going to bed no later than 10:00 p.m. She would sleep through the night without issue.
21The applicant also noted that she would go grocery shopping about once or twice a week, with a particular focus on buying snacks for her grandchildren.
22The applicant did not provide as much detail about her weekends, but she testified that these days would often involve trips to the mall with her husband; attending hour long church services; and visiting friends and family. She would also take one weekend a month to visit with elderly individuals in a nursing home.
23She also described what she would do for special events, like birthdays and Christmas. These events often involved a sizable group of family and friends coming over to enjoy her cooking and baking.
Applicant’s Account of her Post-Accident Activities
24Since the accident, her days now start sometime between 10:00-11:00 a.m. She wakes up with constant pain and a sense of meaninglessness that make it hard to get out of bed. Specifically, she described feeling like this pain stops her from accomplishing anything, so what is the point of waking up.
25Additionally, this pain and associated exhaustion mean she is irritable, and she can only perform simple tasks—like watching television, walking, or reading—for about 10-15 minutes. Even her post-lunch nap has been affected, as she now lies down and feels a little drowsy due to her medications.
26This later start to the day also means that her son is now responsible for getting the grandchildren ready for school, while her husband and the older grandchild put together the children’s lunches. Her husband will also use this time to prepare the applicant’s breakfasts and lunches.
27For dinner, her son will now pick up food for the family, though other members of the extended family will pitch in several times a week.
28When the children arrive home from school, she directs them to get a snack and complete their homework. Her husband then takes care of the rest of household tasks around this time, as she will then lie down in bed from about 3:00-6:00 p.m. She cannot spend this time resting on the couch, because sitting for extended periods of time will cause back pain.
29After dinner, she will try to watch television, before receiving a massage from her husband. She goes to bed no later than 11:00 p.m., though she can only sleep about three hours a night.
30When speaking about her post-accident weekends, she again described significant limitations. First, she can only manage to sit through shorter, 30 minute church services. She also no longer holds parties or goes to the mall with her husband. However, in response to these changes, family members will now come visit her at home, and she has been able to handle brief visits with family in the community.
Respondent’s Arguments
31To challenge these descriptions of her pre- and post-accident lifestyles, the respondent raised major concerns about the applicant’s pre-accident, medical condition. That is, the respondent submitted that her activity levels were already limited before the accident by long-standing, health concerns.
32First, the respondent cited the applicant’s history of motor vehicle accidents, as well as a workplace accident in the early 2000s. For instance, a record from an orthopaedic surgeon concerning her workplace accident (dated July 29, 2014) states that: “The pain in the left shoulder is always flaring up.” This record is from over a decade after the workplace accident took place.
33Then, an assessment from a physical medicine and rehabilitation consultant (dated April 23, 2013) detailed the applicant’s experience of pain and limited household activities:
… [S]he was assessed regarding a multitude of symptoms including symptoms of pain to the lower back… She walks with a limp at times, her leg buckles at times.
She also reported frequent headaches, pain and stiffness to the neck, household activities are limited.
She reported pain to the left shoulder, x 3 weeks. This has been marked. She is not able to raise her arm, sleep on the side, lifting.
34There was also a suggestion of pre-accident pain in the first of the two psychological assessments from the respondent, i.e., the reports of Dr. Rod Day dated November 3, 2015 and July 12, 2018. Specifically, the applicant provided an inconsistent report to Dr. Day as to whether she was experiencing pain at the time of the present accident: “The information she provided about how long these symptoms lasted after the MVA were somewhat inconsistent. However, she stated… that she had some residual pain from these injuries that continued to be active up until the indexed accident.”
35Dr. Meneses’ pre-accident records also include regular notations about pain throughout the left side of her body, e.g., a report of left knee pain on April 10, 2013, and a complaint of left arm pain for the two months preceding a visit on July 27, 2014.
36The respondent then challenged the applicant’s contention that her sleep patterns were affected by the accident. That is, while the applicant claimed she slept through the night without issue before the accident, a record from the Sleep-Wake Disorders Clinic (dated August 22, 2012) suggests otherwise:
Thank you for asking me to see this lady who is tired all the time. She goes to bed and sleeps with difficulty and wakes several times during the night. She usually goes back to sleep. Her total sleep time is only 4-5 hours. She doesn’t usually cat-nap. She wakes with headaches and has been doing so for many years.
37Finally, beyond questions about her pre-accident medical condition, the respondent simply questioned the credibility of her testimony. For instance, in Dr. Day’s second assessment (dated July 12, 2018), he noted that “there has not been a great deal of change in her pattern of activity subsequent to the MVA.” A similar sentiment was recorded in his original assessment as well.
38Then, citing an assessment from Dr. Pravesh Jugnundan (dated September 1, 2015), the respondent highlighted the word “play”. Specifically, the report states: “[The applicant] states currently she can play with the grandchildren...”
39The respondent’s assessment from its occupational therapist, Sarah Maddix, also provides details about the applicant’s physical capabilities and activity levels. The assessor found that while the applicant self-reported an inability to perform a number of tasks, her observed range of motion, strength, and functional abilities told another story. Specifically, the assessor concluded from her home visit that the applicant had the physical capacity to perform light housekeeping tasks.
Psychological Impairment is the Source of the Pre- and Post-Accident Changes
40After considering the respondent’s arguments, I not only accept that the applicant’s accounts of her pre- and post-accident lifestyles are credible, but I further accept that the current accident led to a psychological impairment that caused these changes in her activity levels.
41To begin, I do not find that the accident caused a physical impairment that significantly contributed to these changes, as the medical records described above demonstrate that her history of accidents have left lasting, physical effects.
42There are some records that counter this narrative, e.g., the consultation note from a rheumatologist that concluded that physical pain did not develop until the accident (dated October 26, 2017). It is also likely that these physical complaints were exacerbated by the accident—a point made by the applicant during her first assessment with Dr. Day.
43However, on the whole, the records show that the effects of her workplace and automobile accidents were unlikely to have resolved by April 2015. For instance, the record from the orthopaedic surgeon that found continuing pain in her shoulder was made a decade after her workplace accident in the early 2000s. After so much time had passed, it is unreasonable to find that this pain would have resolved itself in the following year before the accident. Further, I have not been provided with sufficient evidence to disentangle these lasting injuries from any possible, physical effects of the present accident.
44However, as the reasons to follow will show, this finding is largely a moot point (save for the question of the period of entitlement discussed below). Instead, I am satisfied that the applicant received a psychological impairment that has affected her ability to carry on a normal life.
45Central to my analysis of the applicant’s psychological impairment are the two assessments from the respondent’s psychologist, Dr. Day (dated November 3, 2015 and July 12, 2018). While Dr. Day originally found that the applicant did not meet the diagnostic criteria for a psychological condition, his opinion changed during his second assessment:
In the intervening time she has become increasingly discouraged and demoralized that her pain symptoms have not approved [sic] as she had expected it would. It is not unusual for individuals to develop anxiety and depressive symptoms some period of time after the index accident. Despite being distressed by her accident-related symptoms, she expected them to progressively remit. When this did not occur in the manner she expected, she developed clinically significant symptoms of anxiety and depression… More specifically, [the applicant] reported feelings of sadness 3-4 days per week as well as a pervasive loss of interest in activities she previously enjoyed such as going to the hairdresser and attending social outings.
With no evidence of these psychological symptoms existing before the accident, Dr. Day diagnosed the applicant with “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.
46Further support for this diagnosis is found in the changing records from the applicant’s family physician.
47First, in a record dated May 19, 2015 (i.e., just over a month after the accident), Dr. Meneses recorded no mental health issues, namely no changes to mood, anxiety, or trouble sleeping. I highlight this record, because any pre-existing conditions (or mental health concerns arising directly after the accident) should have been apparent during this annual, physical exam. This record also challenges the contention that sleep issues existed in the period immediately preceding the accident.
48Then, during a visit on January 5, 2017, the applicant completed a series of psychometric tests that revealed a developing psychological impairment. For instance, though the applicant denied feeling “down, depressed, or hopeless” in one section of the Patient Health Questionnaire (“PAQ”), her answers in the rest of the tests demonstrated a lack of interest or pleasure in doing things, as well as regular feelings of fatigue, sadness, and anxiety. The PAQ also determined that feelings of sadness and fatigue had existed for about a year, with pain and a lack of sleep negatively contributing to these emotions. Taken together, Dr. Meneses provided the following conclusions: “Probable dysthymia” and “Severe anxiety”.
49During this same visit, the applicant also completed the Sheehan Disability Scale, wherein a client reports how many times anxiety or depression impeded his or her ability to complete certain tasks. Though she noted interference with “Work or School” (i.e., tasks which she was not involved in either before or after the accident), she did cite high levels of disruption to “Social life or Leisure activities” and “Family life or Home responsibilities”.
50The PAQ was again performed on September 25, 2017, with Dr. Meneses this time finding that the applicant’s score suggested: “Major depression, severe”.
51Taken together, I accept Dr. Day’s conclusion that the applicant’s inability to recover from what she believes to be accident-related pain has led to her psychological impairment.
52In response, the respondent highlighted a record from the Urgent Care and Family Medicine Clinic (dated March 15, 2017), wherein the applicant reported no depression or stress. I would place more weight on the questionnaires completed during the January 2017 visit with Dr. Meneses. Not only are these tests more comprehensive, but the applicant also denied feeling “down, depressed, or hopeless” in the PAQ, yet still endorsed other answers that evidenced her distress.
53Following on this conclusion, I am then satisfied that this psychological reaction to pain is the accident-related impairment that caused the post-accident change to her pre-accident activities. Whether it is staying in bed due to feelings of meaninglessness, or her inability to engage with her family and friends as before, I find that this psychological impairment explains these lifestyle changes. Or, as Dr. Day described it, there is a “pervasive loss of interest in activities she previously enjoyed”.
54There is also evidence in the notes from Dr. Meneses that connect her psychological concerns to her inability to get a full night’s sleep (e.g., the visit on September 25, 2017). The psychometric testing from the January 2017 visit provides further support for this connection between her psychological symptoms and her feelings of hopelessness and anhedonia.
55Finally, in regards to the applicant’s account of her pre- and post-accident activities, the respondent has not satisfied me that her testimony is untrustworthy. The reports from the respondent’s assessors did raise some questions about this evidence, but I am satisfied by the answers she provided in response.
56First, when the respondent raised its occupational therapist’s assessment during cross-examination, the applicant admitted that there are some light activities she still performs around the house. These include: minor meal preparation (e.g., heating up soup and preparing a salad); assisting her husband with grocery shopping; and showering. Not only was her explanation reasonable, but the psychological nature of her impairment helps explain her continuing physical capacity to perform some light activities.
57Then, in regards to the statement in Dr. Jugnundan’s report about her continuing ability to “play”, she explained that she can no longer actively play with her grandchildren. That is, she can now only handle passive activities, e.g., her grandchildren will read to her.
58In sum, while there may be questions about the state of her physical health prior to the accident, I am satisfied that the applicant experienced an accident-related, psychological impairment that led to the changes in her pre-accident lifestyle.
Post-Accident Changes Constitute a Complete Inability to Carry on a Normal Life
59Being satisfied that an accident-related impairment caused these changes, I must now determine whether they together constitute “a complete inability to carry on a normal life”. As noted above, s. 3(7)(a) of the Schedule 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.”
60Additionally, Heath requires me to place greater weight on pre-accident activities that had a particular importance for the applicant. In the present case, the applicant submitted that her role as a homemaker should be given more weight. I accept this submission as being in line with the analytical framework from the Court of Appeal.
61Once again, I find that the applicant has met her evidentiary burden. The account that the applicant provided to the Tribunal is one of marked and significant changes to her pre-accident lifestyle. What was once a life grounded in caring for her grandchildren and family is now one based on dependence. Family members are responsible for preparing food and cleaning. She can no longer actively play with her grandchildren. Church services and family gatherings have become difficult, if not impossible.
62There have been some adaptations to help mitigate these changes, e.g., she will visit family members, as opposed to hosting. She is also still able to perform some tasks, namely personal care and light housekeeping. However, the applicant does not have to demonstrate that accident-related impairments have prevented her from engaging in all of her pre-accident activities. Rather, entitlement is based on an impairment affecting substantially all of her activities. Taken together, it is clear that the applicant is being prevented from engaging in substantially all of her pre-accident activities, particularly those activities related to her cherished role as a homemaker.
63I am also mindful of the finding in Heath that it is not enough for an applicant to be able to physically accomplish a task, rather she or he must be able to “engage” in these activities. Put another way, I must be satisfied that an applicant’s pain (or psychological conception of his or her physical injuries) do not significantly restrict the experience of these tasks. In the present case, the applicant’s testimony makes it clear that the psychological conception of her pain has removed the significant meaning she used to attach to her daily activities.
Period of Entitlement
64Since entitlement is based on her psychological impairment, I find that the applicant should be paid from the first indication of significant, psychological symptoms. As such, I find that entitlement starts from the visit with Dr. Meneses on January 5, 2017 (i.e., when the psychological questionnaires were first completed). This entitlement to the non-earner benefit will continue to date and ongoing.
Collateral Benefits File
65The respondent requested that I draw an adverse inference from the applicant’s failure to comply with Adjudicator Purdy’s order to produce her collateral benefits file from Sun Life. The respondent did not provide any context for the inference I should draw from this failure to comply.
Respondent’s Case Law
66The respondent also asked me to consider two Tribunal cases where entitlement to the non-earner benefit was denied: 16-001739 v. Aviva Canada4 and 16-000347 v. Intact Insurance Company5. These cases are distinguishable from the present matter.
67First, Aviva involved an applicant who—similar to the present file—had been involved in a series of previous accidents. However, as opposed to my findings in the present case, Adjudicator Hines was not provided with sufficient evidence to demonstrate a link between the subject accident and the applicant’s impairments.
68The denial in Intact was then based on Adjudicator Theoharis’ conclusion that the applicant’s post-accident, activity levels were not significantly different from her pre-accident lifestyle. As I have described above, the evidence provided by the applicant (and corroborated by medical reports) demonstrate that her pre- and post-accident lifestyles are significantly different.
COSTS
69In addition to a full dismissal of the application, the respondent also requested “costs fixed and payable forthwith on a full indemnity basis.”
70Rule 19.1 of the Rules states that costs may be awarded when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. In the present matter, the respondent did not provide any account for why it believed the applicant acted “unreasonably, frivolously, vexatiously, or in bad faith”.
ORDER AND CONCLUSION
71I find the applicant is entitled to payment for the non-earner benefit from January 5, 2017 to date and ongoing. She is also entitled to interest, in accordance with s. 51 of the Schedule.
72The respondent is not entitled to costs.
Released: March 7, 2019
Craig Mazerolle
Adjudicator
Footnotes
- O. Reg. 34/10.
- Version 1 (April 1, 2016) (the “Rules”).
- 2009 ONCA 391 (“Heath”), at para. 15.
- 2017 CanLII 39526 (ON LAT) (“Aviva”).
- 2017 CanLII 62220 (ON LAT) (“Intact”).