H.M. v. Aviva General Insurance, 2019 CanLII 58162

Tribunal File Number: 18-004734/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:

H.M. Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Appellant: H.M. Kateryna Vlada, Paralegal

For the Respondent: Tara Bull, Litigation Specialist Anne-Marie White, Counsel

Court Reporter: Ryan Arndt

Heard: By Teleconference on March 18, 2019 and in Writing

OVERVIEW

1The applicant, H.M., was injured in a rear-end automobile accident on January 7, 2016. H.M. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Aviva General Insurance (“Aviva”), which denied H.M.’s claim for a weekly non-earner benefit. As a result, H.M. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”).

2The matter proceeded to a combination hearing with a teleconference portion heard on March 18, 2019, and the written portion of the hearing submitted in advance of the teleconference portion.

ISSUE IN DISPUTE

3The following issue is to be decided:

(i) Is H.M. entitled to a weekly non-earner benefit (“NEB”) in the amount of $185.00, for the period of June 17, 2016 to date and ongoing, which was denied by Aviva on June 29, 2016?

RESULT

4Based on the evidence before me, I find that H.M. is not entitled to a NEB for the period of June 17, 2016 to date and ongoing.

ANALYSIS

5The test for entitlement to a NEB is set out in section 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

6Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

7“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”¹

8Both parties cited Heath v. Economical Mutual Insurance Company,² wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.³

9Heath also outlines several principles for the determination of entitlement to NEBs, which include:

(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, and the duration of that period 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 prove 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, such that 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; and,

(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 perform those activities.⁴

10Further, the Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less he or she is able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which he or she ordinarily engaged.⁵

11Neither party made submissions on what the reasonable time period was to examine H.M.’s pre-accident activities as required by Heath. The only medical documentary evidence before me that covered a pre-accident period was submitted by Aviva. These documents are dated well outside of a “reasonable time period” for examination, however, as the various reports and clinical notes and records (“CNRs”) were from 4 for 10 years pre-accident.

12H.M. provided evidence on his pre-accident activities in his affidavit sworn on February 18, 2019 and in his cross-examination and re-examination. At the time of the accident, H.M. was unemployed and had been off of work since 2008, and was receiving Long Term Disability benefits. His pre-accident activities included:

• housekeeping, including sweeping, vacuuming, washing floors, laundry, garbage and snow removal, grass cutting and grocery shopping;
• meal preparation;
• driving his children to and from school, to visit their friends and to other appointments;
• independently attending appointments and taking his medication;
• visiting friends and family;
• walking at least 2 to 3 hours per day outdoors;
• summer activities such as camping, swimming and playing soccer;
• skiing once per year but the last time prior to the accident he skied was in 2015;
• travelling once or twice per year and the last trip was to Egypt in 2015 for 5 weeks;
• reading books; and
• engaging in an active intimate relationship with his wife.

13H.M., however, failed to identify what period of time he engaged in these activities and the frequency in which he engaged in most of these activities. Furthermore, H.M. did not lead any evidence as to what activities were more important to him pre-accident.

14Post-accident, H.M. submits that as a result of his physical and psychological impairments from the accident, he is unable to perform the essential daily activities which constituted his normal pre-accident life. H.M. outlined the activities that he is unable to engage in post-accident through his affidavit and in his testimony, which are as follows:

• sweeping, vacuuming, washing floor, laundry, garbage and snow removal, cutting the grass and independently grocery shopping;
• meal preparation due to prolonged standing;
• drive his children;
• remember to attend his appointments;
• remember to take his medications;
• walk for longer than 30 minutes. He started walking with a cane within the 6 months to a year;
• swim, play soccer or ski;
• assemble a tent;
• read books;
• has difficulty sleeping;
• bathes himself with difficulty;
• dresses himself with difficulty; and
• traverses the stairs in his 2 storey home cautiously and with a cane.

15H.M. is also limited in his attendance at social gatherings, travelling and in his intimate relationship with his wife post-accident. Also, for the activities that he does engage in post-accident, H.M. submits that he requires additional time, effort and assistance. No further details were provided about the additional time and assistance required.

16On cross-examination, H.M.:

(i) confirmed that he travelled once to Cuba via airplane since the accident but could not recall what year this was despite the trip being a celebration of his 50th wedding anniversary;

(ii) stated that he recalled meeting with his family physician, Dr. Natasha Clarke, on May 24, 2016 and reported that he had lost 35 pounds after joining Weight Watchers;

(iii) confirmed that he was still a member of Weight Watchers; and

(iv) failed to answer whether or not he participated in physical activities as part of the Weight Watchers program.

17The documents submitted by H.M. fail to support his position regarding his entitlement to NEBs. For example, H.M. submitted two Disability Certificates (“OCF-3s”), both completed by his chiropractor, Dr. Safana Ladak, that indicate that H.M. suffers a complete inability to carry on a normal life. Both OCF-3s, however, fail to compare his pre- and post-accident activities.

18H.M. also submitted as evidence his Application for Accident Benefits (“OCF-1”) dated February 18, 2016, which reports that he is unable to make meals for his children, do their laundry and take them to events and help with homework. The OCF-1 also fails to conduct a pre- and post-accident activity comparison.

19H.M. also submitted various CNRs from his family physician, Dr. Clarke. These CNRs, however, fail to compare H.M.’s pre- and post-accident activities and no CNRs from Dr. Clarke dated before the accident were submitted by H.M.

20In denying NEBs to H.M., Aviva relied upon an Orthopaedic Surgery Assessment Report dated July 13, 2016 by Dr. Louis Weisleder, orthopaedic surgeon.⁶ In his report, Dr. Weisleder concludes that H.M., “does not suffer a complete inability to carry on a normal life as a result of the injuries sustained in the motor vehicle accident dated January 7, 2016,”⁷ with no explanation or details as to how he arrived at this conclusion. This leads me to place little weight on this report because under “social and personal history,” Dr. Weisleder lists H.M.’s age, his date of birth, that he is right-handed, married and has two children.⁸ There is no other information on his pre-accident activities. I also place little weight on Dr. Weislder’s November 20, 2017 report which does report on some of H.M.’s difficulties in day-to-day living as again, there is no comparison of his pre- and post-accident activities.

21H.M. questions the denial by Aviva of his NEBs and argues that Aviva did not properly assess his entitlement to the benefit because it only sought out one opinion from one assessor. While I find that Dr. Weisleder’s report was severely lacking in an explanation of how he arrived at his conclusion regarding H.M.’s entitlement to NEBs, H.M. does not submit which provisions of the Schedule Aviva has failed to follow by not having additional assessments of H.M. completed. Furthermore, the burden of proof never shifts to Aviva such that it is required to disprove H.M.’s entitlement to NEBs – H.M. always bears the burden to prove his entitlement to this benefit.

22Based on the evidence before me, I find that H.M. has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of the accident and, therefore, he is not entitled to NEBs for the period of June 17, 2016 to date and ongoing.

CONCLUSION

23For the reasons outlined above, I find:

(i) H.M. has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of the accident and, as a result, he is not entitled to NEBs for the period of June 17, 2016 to date and ongoing; and

(ii) This application is dismissed.

Footnotes

1. 116-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
2. 22009 ONCA 391 (“Heath”).
3. 3Ibid. at para. 50.
4. 4Ibid.
5. 516-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
6. 6Respondent’s Document Brief, tab R.
7. 7Ibid. at page 5.
8. 8Ibid. at page 3.```