S.K. v. Allstate Canada, 2019 CanLII 34618

Tribunal File Number: 18-000180/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:

S.K.

Applicant

and

Allstate Canada

Respondent

DECISION

PANEL:

Craig Mazerolle, Adjudicator

APPEARANCES:

For the Applicant:

Ryan Zigler

For the Respondent:

Suzanne Clarke

HEARD:

October 30, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident on February 29, 2016. 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 only issue in dispute, i.e., the non-earner benefit from August 29, 2016 to date and ongoing. Further, she is entitled to interest for this overdue payment.

COURT REPORTER

3At the start of the proceeding, I heard arguments from the parties over the respondent’s request to have a court reporter present at the hearing.

4According to the respondent, a court reporter was needed to ensure the fairness of the process, especially if an appeal of my decision was needed at a later date. The respondent also noted that the prospect of bringing a court reporter had already been canvassed during the case conference. The applicant opposed this request, as she was concerned about the level of stress it would cause her. She also noted that there was no discussion of a court reporter at the case conference.

5Pursuant to Rule 13.3 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission − Common Rules of Practice and Procedure, Version I (October 2, 2017), I allowed the respondent to have a court reporter present during the hearing. An accurate record of the witnesses’ testimony will benefit any future decision-maker tasked with deciding an appeal. Further, while I sympathize with the applicant’s concerns, it is commonplace for court reporters to be present during in-person hearings before the Tribunal.

NON-EARNER BENEFIT

6Section 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” within 104 weeks of the accident. 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.”

7The Court of Appeal for Ontario’s seminal case of 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.²

8This 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.

Parties’ Positions

9The applicant argues that her accident-related fibromyalgia has caused pain and fatigue that have significant and lasting effects on her ability to participate in her pre-accident activities. These activities include: shopping, cleaning, meal preparation, and—most importantly—caring for her daughter and husband (both of who also testified at the hearing). Specifically, these activities have either ceased completely, or they have been severely limited in scope. The applicant also cites C.L. v. State Farm Insurance Company³ as an example where the Tribunal awarded the non-earner benefit to a housewife whose pain limited her ability to engage in day-to-day life.

10The respondent contends that the applicant does not meet the strict threshold for entitlement. First, the respondent highlights the wide range of activities that the applicant can still perform, albeit with limitations, e.g., personal care and driving. The respondent then notes that, while she was unemployed at the time of the accident, she started working for several months following the accident. Finally, the respondent argues that medical records contradict her account of significant, post-accident limitations. In particular, its orthopaedic surgeon, Dr. Richard Kaminker, found “an active range of motion in her cervical spine; lumbar spine; shoulders and knees”.

Pre-Accident Activities

11Entitlement to the non-earner benefit is based on a comparison between an insured person’s pre- and post-accident activities. In line with the aforementioned principles from Heath, this account of one’s pre-accident life cannot be a mere snapshot, but rather it must be a thorough narrative derived from a reasonable period of time before the accident.

12During her testimony, the applicant’s activities were divided into the following categories: cleaning, cooking, social activities, family activities, and personal care.

13First, before the accident, the applicant was solely responsible for cleaning the family’s two bedroom apartment. These tasks would entail: vacuuming carpets; cleaning the bathroom; cleaning the cupboards in the kitchen; cleaning windows; dusting; mopping; making beds; as well laundry and ironing. She noted that she would thoroughly clean the house once or twice a week, with these thorough cleans taking place after dinner until 10:00 pm.

14Cooking would mainly fall to the applicant as well. Simple breakfasts were made during the week, while the applicant would spend up to an hour making more complicated breakfasts on the weekend. She was also responsible for preparing all of her daughter’s and husband’s lunches, as well as the family’s dinners (though her husband would occasionally bring home pizza after work). The dinners she used to prepare were quite involved, as they would take between 90 to 120 minutes to cook.

15She also noted that she would bake breads, cookies, and baklava; and, she was responsible for buying the groceries (though her husband would help with this chore).

16The husband’s testimony echoed her assertion that she did all of the cooking and cleaning before the accident.

17The applicant also reported having an active social life. Specifically, as noted by the applicant and the rest of the family, the three would make regular trips to the Don Mills Shops. These trips were very important to the family, as it allowed them to keep in regular contact with members of the community. In addition to these visits, the applicant would spend much of her weekends cooking with her extended family. She also attended church services and made weekly visits with friends at a local Armenian community centre.

18Beyond her social life, the applicant also testified that she used to be quite physically active, i.e., a lot of walks, swimming at the local YMCA, and biking.

19Finally, and most importantly for the applicant, she told the Tribunal about the ways she used to support her family. First, for her daughter, the applicant helped with homework, and she drove her to and from school, appointments, piano lessons, and basketball. The two also used to enjoy watching movies together. According to the applicant: “My life was for her.”

20In regards to her husband, the applicant testified that they used to have a loving and supportive relationship. For instance, they would spend their free time shopping and getting fast food. She also noted that they had intimate relations.

21In addition to delineating the activities she participated in, the applicant described an average, pre-accident weekday as follows: wake up (no later than 6:30 am); prepare lunches; drive her daughter to school; shop; cook/clean; pick up her daughter from school; run errands with her daughter before returning home; prepare dinner; husband arrives home around 7:30 pm; clean; shower; and, finally, sleep without disruption.

Post-Accident Activities

22Next, I must determine what activities the applicant now participates in after the accident.

23First, the applicant and her daughter reported minor changes to her personal care regime. That is, while she is still able to shower and dress herself, her daughter must now help with her hair, as it is too painful to lift her arms.

24In regards to cleaning, she is currently limited to simple tasks, e.g., cleaning the bathroom sink and (occasionally) the toilet; a small amount of laundry and ironing; and wiping down cupboards that do not require her to bend down or change the level of her body. She can also clean the fridge, but this task now takes place over two days, and it again necessitates her daughter’s assistance. Aside from these limited tasks, the family requires the services of a professional cleaner.

25As a more general comment, the applicant also testified that the tasks she is still able to perform now take her much longer, i.e., tasks that might have taken five minutes can now take up to two hours. She also limits how often she will carry things in her hands, e.g., she no longer carries a purse, and she cannot wear her wedding ring anymore.

26Cooking has also been severely limited. That is, she no longer makes lunches for her family, as meal preparation activities (e.g., cutting and rolling) accentuate her pain. In regards to dinner, she only makes about three to four dinners each month, and these meals are simple plates comprised of meat and vegetables. Her mother-in-law is now assisting with cooking.

27The important family activities she did before the accident have also been affected. In regards to her husband, she stated that they no longer go out to social events, and they are no longer intimate because it is too painful for someone to touch her. Of note, the applicant, her husband, and her daughter all testified that the husband now gets home from work much later than before (i.e., around midnight). The husband also testified that he now spends a lot of time at his mother’s place, because the applicant is always screaming at him.

28Her relationship with her daughter has also deteriorated. For instance, the applicant can no longer help with her daughter’s homework, and she finds herself yelling at her daughter constantly. However, she can still drive her daughter to and from school, but these drives are only about four to five minutes long.

29The daughter then testified that her mother now spends most of her time in her room. As such, between her mother being absent, and her father not coming home until late at night, she now experiences a deep sense of loneliness at home.

30Finally, the applicant’s relationships with extended family and friends have also been affected. By example, the applicant attended important events in the months leading up to the hearing. Yet, even though she was excited about these functions (including a reunion with individuals from her home country), the pain from the accident meant it was difficult to engage with others.

31The family’s important trips to the Don Mills Shops have also been affected, with her daughter testifying that the last time they tried to visit the mall, the applicant did not get out of the car.

32The applicant described weekdays after the accident as follows: wake up (no later than 6:30 am); put the coffee on; drive her daughter to school; sleep on and off throughout the day (interspersed with minor cleaning tasks, e.g., washing 5-6 dishes); pick up her daughter from school; either drive home or pick up some groceries (with her daughter pushing the cart); dinner; go to bed (with sleep limited to 90 to 120 minute periods throughout the night).

33After considering the family’s testimony, I accept this account of the applicant’s pre- and post-accident lifestyles. Not only was there a high degree of consistency with her husband’s and daughter’s testimony, but the family freely accepted and explained possible issues with their evidence. For example, the daughter conceded that her knowledge of the applicant’s weekend activities came, in part, from what she had heard from her father. The applicant’s account is also largely consistent with her self-reported limitations to medical professionals, e.g., the assessment reports from Drs. Craig Rosenblatt (i.e., respondent’s chiropractor) and Joseph Wong (i.e., applicant’s physiatrist).

34As noted above, the respondent questions this account. First, video surveillance obtained by the respondent shows the applicant driving into a parking lot. She is then recorded walking into a building while holding a few items (the largest being a water bottle).

35I do not place much weight on this surveillance, as there is no significant difference between the applicant’s testimony and what she is shown doing in this recording. That is, the applicant testified that she can still do some limited driving (namely, the short distance to and from her daughter’s school), and she can carry smaller items (e.g., her ability to wash a few dishes at a time).

36The respondent also questions the lack of medical records detailing how the accident has affected her relationships with the husband and daughter. While records of this kind may have provided further information about how these relationships were affected, I understand how difficult it would have been to detail these issues for medical professionals. This difficulty would have been especially pointed when she was meeting with the respondent’s assessors, i.e., medical professionals she would have been meeting for the first time. Therefore, I do not place significant weight on this lack of records.

Accident-Related Impairments

37Having accepted the applicant’s account of how her lifestyle has changed since the accident, I must now be satisfied that accident-related impairments caused this change. Once again, I accept that accident-related impairments caused this change.

38First, as is apparent from the applicant’s description of her current, physical limitations, pain plays a major role in explaining why this change took place. That is, pain regularly impedes her ability to both perform tasks and engage with others. For example, as described in the report from one of the applicant’s rheumatologists, Dr. John Acker, the applicant avoids any tasks above “mild physical activities”, as anything more rigorous will cause increased pain for several days to follow.

39Second, this pain has been diagnosed by several medical professionals as resulting from fibromyalgia. Though the applicant’s chiropractor, Dr. Nabil Tabar, was cautious in his initial findings about her medical condition, the diagnoses of fibromyalgia from both Drs. Sharon Koren (i.e., the applicant’s other rheumatologist) and Wong provide me with sufficient confidence that she suffers from this condition.

40Finally, Dr. Wong’s observation that the applicant began experiencing this pronounced pain after the accident is further evidence that it was, in fact, caused by the accident. A review of the applicant’s medical records (namely the summary of services she has received from OHIP) corroborates this finding.

41In response, the respondent highlights the report of its assessor, Dr. Kaminker, to contend that the applicant does not suffer from fibromyalgia. Specifically, as noted above, Dr. Kaminker found that “an active range of motion in her cervical spine; lumbar spine; shoulders and knees”. While it is true that Dr. Kaminker did not find any objective signs of impairment, he did note that the applicant was experiencing ongoing pain:

From and [sic] orthopaedic perspective I could not find evidence of ongoing traumatic-related impairment that would account for a prolonged duration of symptoms of pain and functional disability. The [applicant’s] ongoing complaints of pain do not correlate with any objective findings of the traumatic-related impairment at this time.

Therefore, even though there are no associated, objective injuries, this finding supports the conclusion that the applicant is still suffering from an ongoing pain condition.

Complete Inability to Carry on a Normal Life

42Satisfied that the change to the applicant’s lifestyle is being caused by an accident-related impairment, I must determine whether this change constitutes “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.”

43The Court of Appeal’s decision in Heath provides helpful guidance in applying this standard. That is, I am alive to the Court’s instruction that important, pre-accident activities should be provided more weight. In the present case, I find that the applicant’s noted dedication to her family must factor heavily in my analysis.

44Therefore, when faced with a convincing account of a mother and homemaker who can no longer provide the important care and assistance she used to give her family, I am satisfied that she can no longer “carry on a normal life”. I am also conscious of the important activities that allowed her to stay connected to the broader community, e.g., weekly trips to the Don Mills Shops. These too have been affected by her accident-related pain. Taken together, it is clear that the applicant’s life has been significantly affected, and the activities that used to bring her a sense of purpose and belonging are no longer available to her.

45Further, though there are fits and starts when the applicant can manage some of the family’s housekeeping and cooking needs, the pain and fatigue associated with these activities bring to mind another finding from Heath. That is, even though an insured person may have the physical capacity to perform a task, an adjudicator must still be conscious of how pain may disallow him or her from “engaging in” that activity. When I consider the important role that tending to the home used to play in the applicant’s life, her inability to clean more than a few dishes at a time demonstrates how these tasks no longer contain the meaning that they used to possess. That is, she used to be the person her family could rely on for assistance, but now she is limited by this long-standing pain to a few tasks here and there.

46What is more, the applicant now requires the assistance of a professional cleaner, her mother-in-law, and her daughter—assistance that must be further proof to her that she can no longer accomplish what she used to do with ease. In sum, the essential core of these activities (i.e., service to her loved ones) has been vacated, even though she may still possess the physical capacity to accomplish some of these tasks.

47I would also note that, in the Court of Appeal’s later decision in Galdamez v. Allstate Insurance Company of Canada, Justice Simmons added that the term “substantially all” does not require “all” pre-accident activities to be affected.⁴ Therefore, while the applicant may be able to perform her personal care activities in much the same way as before, I do not find that this one category of activity is enough to deny entitlement to the non-earner benefit. Additionally, while personal care is certainly an important part of one’s day-to-day life, I again place greater weight on activities that are done for the benefit of others, namely her family because of their importance to the applicant.

48Finally, while much of the evidence before the Tribunal detailed the changes to her pre- and post-accident activities, the respondent highlighted an activity that she only started after the accident. Specifically, from May to October 2016, the applicant worked at a community agency assisting Syrian refugees with paperwork.

49While I accept that this work took place, it does not change my overall conclusion. The effort required by this position was quite light. That is, the agency was a short distance from her home, and she would only work about three hours a day completing paperwork in an office setting. In fact, this role was classified by Dr. Acker as “light physical work”. Yet, even though it was light work, she still failed to possess the physical and cognitive capacity needed to pursue this position for longer than a few months.

CONCLUSION

50Taken together, I am satisfied—on a balance of probabilities—that the subject accident caused the onset of lasting pain that has, in turn, impeded the applicant’s ability to carry on a normal life. The applicant is entitled to payment for the non-earner benefit from August 29, 2016 to date and ongoing (subject to deductions for any earnings post-accident).

51She is also entitled to interest, in accordance with s. 51 of the Schedule for any overdue payments.

Footnotes

1. 1O. Reg. 34/10.
2. 22009 ONCA 391 (“Heath”), at para. 15.
3. 32018 CanLII 61173 (ON LAT).
4. 42012 ONCA 508, at para. 39.