C.C. vs. Erie Mutual Insurance Company, 2020 ONLAT 18-010778/AABS
Tribunal File Number: 18-010778/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:
C.C.
Applicant
And
Erie Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES
Counsel for the Applicant: Joshua D. Shields
Counsel for the Respondent: Catherine Zingg
Written Hearing: September 9, 2019
OVERVIEW
1C.C. was injured in a motor vehicle accident on September 29, 2017 and sought benefits from the respondent, Erie Mutual, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Erie Mutual denied C.C.’s claim for Non-Earner Benefits (“NEBs”) on the basis that she does not suffer from a complete inability to carry on a normal life, as required by the Schedule. Erie Mutual also denied C.C.’s claim for attendant care benefits (“ACBs”) on the basis that they were not reasonable and necessary. C.C. disagreed and applied to the Tribunal for dispute resolution.
ISSUES IN DISPUTE
3The issues to be decided according to the Case Conference Order and submissions are:
i. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period October 6, 2017 to date and ongoing?
ii. Is the applicant entitled to attendant care benefits in the amount of $1,132.32 per month for the period September 29, 2017 to date and ongoing?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that C.C. is not entitled to NEBs for the period in dispute as she has not demonstrated that she has a complete inability to carry on a normal life as a result of the accident.
5I find C.C. is not entitled to ACBs for the period in dispute as she has not demonstrated that the benefits are reasonable and necessary.
6I find no basis to grant an award and no interest is payable.
ANALYSIS
Non-Earner Benefits
7In order to receive NEBs, C.C. must prove that she suffers a complete inability to carry on a normal life as a result of the accident.2 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 them from engaging in substantially all of the activities in which they ordinarily engaged before the accident and they are not entitled to an income replacement benefit.3 The seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident.4 The evidence led concerning C.C.’s pre-accident activities and how her impairments as a result of the accident have led to a complete inability to carry on with them post-accident did not, in my view, meet the requirements of the stringent NEB test. On the evidence, I find that C.C. is not entitled to NEBs for the period in dispute as she has not demonstrated a complete inability to carry on a normal life as a result of the accident.
8In support of her position, C.C. relies on a Disability Certificate dated January 4, 2018 and the psychological assessment and progress reports of Dr. Shahrokhnia, who diagnosed her with post traumatic stress disorder, chronic pain, driving anxiety and functional limitations of activity due to disability. The reports state that C.C. was adequately functioning in all of her activities of daily living prior to the accident and that the accident “destabilized” her pre-existing psychological impairments which were previously under control with treatment and medication. In an addendum report dated April 18, 2019, Dr. Shahrokhnia opined that from a psychological perspective, C.C. meets and exceeds the NEB requirements. C.C. submits that while she is able to handle some of her pre-accident activities, that it cannot be said she is engaging in any of them, rather, she is largely “going through the motions” when required.
9In response, Erie Mutual contends that C.C. does not suffer a complete inability to carry on a normal life. It submits that the psychological reports on which C.C. relies do not provide an accurate picture of her pre-accident psychological state and life circumstances. Erie Mutual points to C.C.’s hospitalization for a suicide attempt one month prior to the accident, the death of her son over three years earlier, the death of her best friend, her distress over her son’s opioid addictions, a history of depression, an abusive step-father and a previous motor vehicle accident as evidence that, the destabilization Dr. Shahrokhnia suggests is a result of the accident, existed prior to it. Erie Mutual relies on the findings of its Insurer’s Examination (“IE”) assessors, Dr. Abram, M.D., Dr. Dudley, psychiatrist and Ms. Wilson, occupational therapist. Both Dr. Abram and Dr. Dudley found that C.C. did not suffer from a complete inability to carry on a normal life from either of a physical or psychological perspective. In sum, Erie Mutual submits that C.C. is able to do many of her pre-accident activities, albeit with some difficulties, and her psychological impairments are not as a result of the accident.
10I find there was limited evidence led and no substantive submissions on C.C.’s pre-accident activities and how her accident-related impairments have led to a complete inability to carry on with them post-accident. Although not specifically addressed in her submissions, in parsing through reports, I was able to glean from her self-reporting that some of her pre-accident activities included: living on her own, taking her dog for walks, driving, watching her nephew, cleaning, as well as being social with friends. While these details are a start, C.C. offered no comparison of the amount of time she spent on each of her pre-accident activities or on how much value and importance she placed on each. C.C. also failed to show how her accident-related impairments have impacted her ability to carry on with her pre-accident activities. In the absence of this information, it is difficult to compare her pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued, as Heath requires, and especially considering the difficulties she faced in her personal life pre-accident.
11While not required by the legislation, C.C. did not rely on any affidavit or viva voce evidence to speak to the Heath factors for this written hearing. As a result, I have limited evidence to base C.C.’s claims on and certainly not enough to meet the stringent NEB test. I only have assertions that she has a complete inability to carry on a normal life with little support as to how the injuries sustained—physical or psychological—as a result of the accident have affected her daily routines, her function or her most valued activities, from either a subjective or objective measure. I find this oversight is fatal to her claim in proving that it was the accident that led to her alleged complete inability to carry on a normal life because I do not have a current snapshot of what constitutes her normal day to day life post-accident and how it has changed from her pre-accident life. I do not have evidence that she is simply “going through the motions” now, as she alleges.
12Indeed, while I have a general understanding of C.C.’s pre and post-accident activities based on her self-reporting, I find there is no substantive comparison of the amount of time she spent on these activities (for example: How often did she walk her dog before? What types of social activities is she missing out on now because of the accident? How long does her personal care routine take post-accident compared to pre-accident? Does she still watch her nephew? Is she incapable of living alone now? What aspects of her relationships are strained post-accident, if any? How much sleep did she get pre-accident vs. post? etc.) or on how much value and importance she placed on each. While I am alive to C.C.’s psychological diagnoses and reports of pain, I also find that she is not completely unable to do many things. Indeed, on the reports and surveillance before the Tribunal, I find she is still able to drive, to walk her dog and take it to the vet, to perform her personal care routines, take her medication, attend appointments, complete basic housekeeping and go shopping in the community.
13A portion of C.C.’s submissions focused on her pain and how it impedes her day-to-day living, specifically, as noted in the OT Report of Ms. Arathi: her neck, low back pain and reduced postural tolerances. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.5 On C.C.’s reporting of her daily activities, I find that she does suffer from some pain, as she reports the pain can rise to 8-9/10 on the pain scale and that she has a reduced ability to perform some of her housekeeping activities like cleaning and taking out garbage as a result. However, although I find C.C. experiences pain, I find on the evidence that her pain does not practically prevent her from the majority of her independent self-care tasks or engagement in her daily activities. To C.C.’s credit, based on the OT report, it appears she is capable of pacing herself and using aids successfully (a long-handled vacuum, Swiffer, a buggy to transport laundry, a wagon for groceries) for activities where her function is reduced. Accordingly, I struggled to reconcile how her pain practically prevents her from completing these tasks.
14The Heath test provides that the applicant may identify their “valued” activities of daily living and submit how, as a result of the accident, their most valued activities have fundamentally changed due to pain, thus resulting in a complete inability to carry on a normal life. Activities identified by an applicant as being highly valued attract more weight. In her materials, C.C. did not identify activities that she placed greater weight or value on pre-accident. I note in the OT Report that she seemed to take great pride in the cleanliness of her home and that she can no longer meet her own standards, however, for the reasons above, I do not believe this reduced standard of cleanliness, if true, constitutes a complete inability to live a normal life.
15Finally, I echo Erie Mutual’s submission that C.C. has a multitude of physical and psychological challenges and that her family situation in recent years would be overwhelming for anyone. However, I agree that the onus to prove entitlement ultimately rests with C.C. While C.C. has endured more than her share of trauma, I do not find that she has a complete inability to carry on a normal life as a result of the accident. C.C. is therefore not entitled to NEBs for the period in dispute.
Attendant Care Benefits
16In order to receive ACBs, C.C. must establish that the services provided are reasonable and necessary and that the expenses were incurred, pursuant to s. 19(1)(a) and 3(7)(e) of the Schedule. I find on the evidence that C.C. has failed to prove that the services are reasonable and necessary and incurred.
17C.C. relies on the Assessment of Attendant Care Needs (“Form-1”) and OT report of Ms. Arathi dated July 20, 2018, which determined that she required monthly ACBs in the amount of $1,132.32, largely for meal preparation and hygiene. C.C. argues that Erie Mutual denied her claim without conducting an IE on the specific benefit and relies on an OT Report that was scheduled to determine her eligibility for NEBs, so it has not furnished a competing opinion on the attendant care recommended. In response, Erie Mutual relies on the OT Report of Mr. Wilson, the surveillance footage from April 2019 and the fact that C.C. has not provided proof that any of the ACBs recommended were incurred.
18While I agree with C.C. that Erie Mutual relies on an OT report that was scheduled to address a different benefit, I reiterate that it remains her burden to prove that the ACBs she seeks are reasonable and necessary and incurred. In spite of the recommendations from Ms. Arathi, I find C.C. has not demonstrated why it is reasonable and necessary that she requires approximately 90 hours of attendant care per month, given her functionality. Indeed, while I am alive to Ms. Arathi’s recommendations, respectfully, I find they are not proportional to the bulk of the evidence and C.C.’s own self-reporting which suggests that, while she has some pain, she remains quite capable of completing her day to day activities, as noted above. Indeed, in my view, the surveillance alone—C.C. is observed driving safely, attending an appointment, shopping at Costco over a period of four hours on a single day—undermines many of the reasons provided by Ms. Arathi that C.C. requires supervisory care. Further, I struggle with the reasonableness of providing weekly attendant care to help C.C. style her hair, get in and out of the tub and cook where multiple assistive devices have also been recommended. On the evidence, I find limited support for the contention that C.C. has issues completing her self-care.
19In any event, I agree with Erie Mutual that C.C. has not demonstrated that the services have been incurred, by a professional or otherwise, or that a provider has suffered an economic loss, even though the Form-1 was submitted in July 2018. Accordingly, I find C.C. is not entitled to payment for the ACB as it is not reasonable and necessary or incurred.
Award
20C.C. argues that an award under O. Reg. 664 is justified as a result of Erie Mutual’s “negligent” and “callous” denial of her NEB and ACB claims. Under s. 10, the Tribunal may issue an award of up to 50 per cent of the amount to which C.C. is entitled if the Tribunal finds that Erie Mutual has unreasonably withheld or delayed payments. On the facts and evidence before me, I find that an award is not appropriate.
21While C.C. may disagree with Erie Mutual’s determinations, I find nothing in the evidence to suggest that Erie Mutual unreasonably withheld or delayed the payment of benefits that C.C. was entitled to. Indeed, on a good faith basis, Erie Mutual paid out the lone medical benefit in dispute at the case conference stage despite its previous denial of same. Contrary to C.C.’s submission, I do not find Erie Mutual acted negligently or callously in this proceeding. Accordingly, I decline to grant an award.
CONCLUSION
22For these reasons, C.C. is not entitled to a NEB as she has not demonstrated a complete inability to carry on a normal life as a result of the accident. I find she is not entitled to payment for ACB because it is not reasonable and necessary or incurred. I decline to grant an award. As no benefits are overdue, no interest is payable.
Released: January 7, 2020
___________________________
Jesse A. Boyce, Adjudicator
Footnotes
- O. Reg. 34/10.
- The factors that inform the determination of NEB entitlement are outlined in the seminal case Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 [“Heath”].
- O. Reg. 34/10, at ss. 3(7)(a) and s. 12(1).
- Heath at para. 50.
- Heath, supra note 2 at para 50.
