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:
M.B.
Appellant
and
TD Insurance Meloche Monnex
Respondent
DECISION
PANEL:
Nathan Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
M.B., Applicant
C.B. and S.B., Applicant’s Parents
Don Harvey, Counsel
For the Respondent:
Peggy Moore, AB Specialist
Joseph Hogan, Counsel
Court Reporter
Christina Johnston
Observer:
Lindsay Lake, Adjudicator
HEARD:
In Person: July 2 and 3, 2019
OVERVIEW
1The applicant was involved in an automobile accident on October 24, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent stopped paying non-earner benefits (“NEBs”) to M.B. on November 18, 2016 on the basis that he did not suffer a complete inability to carry on a normal life. The respondent also refused to pay for a treatment plan for psychological services on the basis that it was not reasonable and necessary. M.B. disagreed with this and applied to the Tribunal to resolve the dispute. The parties participated in a case conference but did not resolve the issues in dispute.
3At the beginning of this hearing, the applicant withdrew the portion of the application addressing the treatment plan for psychological services. The only issues addressed at the hearing were the applicant’s entitlement to NEBs and whether any interest was owed on overdue payments.
4For the reasons that follow, I find that the applicant is not entitled to NEBs, and as a result is also not entitled to interest on any overdue payments.
ISSUES
5The following are the issues the parties agree must be decided:
i. Is the applicant entitled to non-earner benefits in the amount of $185.00 per week from November 19, 2016 to October 29, 2018?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
Non-Earner Benefits
6To qualify for NEBs, the applicant must establish that he suffers a complete inability to carry on a normal life because of the accident.1 A person suffers a complete inability to carry on a normal life as a result of an accident if 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.2 I find on a balance of probabilities that M.B. is not entitled to non-earner benefits for the period in dispute because M.B. did not suffer a complete inability to carry on a normal life as a result of this accident.
7M.B. submits that he suffers from a complete inability to carry on a normal life on the basis that his pre-existing cerebral palsy, combined with the impairments he suffered as a result of the accident, mean that he can no longer manage his pre-accident activities of daily living or engage in recreational and social pursuits. I find that the evidence does not support this position.
Medical Evidence
8The respondent denied M.B.’s application for NEBs primarily on the basis of the OCF-3 (Disability Certificate) completed by M.B.’s family physician, Dr. T., on October 27, 2016. Dr. T. attended this hearing and testified on the applicant’s behalf, but did not waver from the information provided in the OCF-3 – that is, that at the time, Dr. T.’s opinion was accurately summarized in the OCF-3 and was that the applicant did not suffer a complete inability to carry on a normal life.
9Dr. T. acknowledged that he was not intimately familiar with the legislative test for NEBs and that he deferred to a treatment centre that was more actively engaged in M.B.’s routine care for the completion of the form. I found Dr. T. very forthright as he even admitted that the forms used in this legislative scheme are at times “overwhelming”. However, although the applicant was able to demonstrate that the opinion provided was simply approved by Dr. T., and that Dr. T. is not an expert in this legislation, there was no evidence that the opinion was incorrect or flawed. In addition, there was no other OCF-3 provided that contradicted this opinion.
10In fact, the respondent elected not to call any witnesses in this hearing relying on the evidence of M.B.’s treating medical practitioners rather than any other assessments. The respondent directed me to many indications in the clinical notes and records that suggest the applicant was continually improving, his symptoms were mild, and he was able to engage in many of his pre-accident activities.
11The applicant argued that these notes should be given limited weight as a result of the authors having not been called to testify. I am cognizant of this, but note that there is very little other evidence available in this instance. The only direct testimony from a medical practitioner came from the applicant’s family doctor who did not contradict the content or conclusions of any other treating practitioner. In short, I find that the majority of available evidence shows that the applicant engaged in most of the activities post-accident that he did pre-accident. On some occasions, M.B. reported increased symptoms after engaging in activity. On many occasions, M.B. reported mild difficult if any at all and that a return to independence was occurring.
12I note that there was a second accident – which is not the subject of this application and, after the second accident in September of 2018, there is no dispute that the applicant qualified for NEBs.
Pre and Post-Accident Activities
13The parties agreed that the reasonable period of time to consider in this instance was from approximately 2011 until the date of this accident. During that time, M.B. was not employed, but searched for jobs extensively. M.B. also drove his spouse to work, attended games nights, read books, participated in choir, was active in sledge hockey, and performed most housekeeping tasks in his home, including shopping.
14After the accident, M.B. was assisted by a local treatment facility and engaged in treatment and training programs with the support of his family and his medical practitioners. M.B. was also assisted by his mother in returning to driving a vehicle. His family is very supportive and encouraged him to maximize his function with practice and repetition. This was largely effective.
15M.B. testified that his post-accident activity was slower than his activity from 2011 to the date of the accident. After the accident (and before the second accident in September 2018) he described more frequent headaches and struggling to focus as well as he did previously. However, he remained the sole driver in the home taking his spouse to work on a daily basis. In addition, he attended to the shopping and virtually all housekeeping tasks with the exception of carrying heavy items down a staircase. M.B. engaged in reading for pleasure for up to two hours at a time and reading more complex information for approximately an hour at a time.
16Although M.B. testified he is no longer actively engaged in a job search since the accident, he had no volunteer placements before the accident and now attends three volunteer placements per week, effectively increasing his activity level. The respondent stressed that the applicant completed job application documents after the accident which suggested that he is continuing a job search. I accept the applicant’s position that this may well have been either isolated applications or training simulations performed as an exercise in his treatment.
17The clinical notes and records, as well as M.B.’s testimony, confirm that following the accident he continued to engage in games nights and to attend casinos and holiday excursions as necessary. The medical documents suggest that these activities caused M.B. only mild difficulties.
18The applicant was encouraged to return to sledge hockey by one treatment provider, but the applicant’s mother testified that he was also told not to do so unless he was completely symptom free by a specialist. The applicant’s mother also felt that it would simply be unsafe for him to do so as a risk of concussion was significant. Nevertheless, M.B. returned to coaching and mentoring junior sledge hockey players. The applicant is able to participate on ice but does not play competitive games personally.
19The applicant also continues to participate in choir practice and performances. M.B. feels he is less social at these functions than he was previously, and that he will have headaches and struggle to recall the music as well as he did in the past. However, the medical reports provided suggest that he was participating well and reported only minimal discomfort after most choir activities.
20While M.B. stressed the personal importance of these activities and especially his participation in sledge hockey, choir and his job search, I find that the balance of evidence, including M.B.’s self-reporting to his treatment providers does not establish the changes in his life post-accident demonstrate that he suffers a complete inability to carry on a normal life because of the accident. Indeed, he remained engaged in virtually all of these activities with minimal change or impediment.
CONCLUSION
21M.B. is therefore not entitled to NEBs for the period in dispute. It follows that M.B. is not entitled to any interest on overdue payment of benefits.
Released: July 31, 2019
Nathan Ferguson
Adjudicator
Footnotes
- The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009, ONCA 391.
- O.Reg. 34/10, at s.3(7)(a).