A.B. v. Aviva Insurance Company of Canada, 2020 CanLII 14463

Licence Appeal Tribunal

Citation: A.B. v. Aviva Insurance Company of Canada, 2020 CanLII 14463 Tribunal File Number: 18-010200/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits.

Between:

A.B. Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Denis Chubar, Paralegal For the Respondent: Maggie Morgan, Counsel

HEARD In Writing: September 9, 2019

OVERVIEW

1The applicant, AB, was involved in an automobile accident on March 1, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”) from Aviva Insurance Company of Canada (“respondent”). He applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution services when the respondent denied the disputed claims.

2The application for the non-earner benefit is now before me, by a hearing in writing.

ISSUES TO BE DECIDED

3As per Tribunal Orders made March 25, 2019 and June 27, 2019, the issues to be decided by me are:

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from January 15, 2017 up to date?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant has not proven his entitlement to a non-earner benefit as he does not suffer from a complete inability to carry on a normal life. No benefits are overdue and therefore no interest is payable.

ANALYSIS

5Section 12 of the Schedule requires an insurer to pay a non-earner benefit to an insured person who does not qualify for an income replacement benefit and who suffers from “a complete inability to carry on a normal life” as the result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

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

7The onus is on the applicant to prove that he or she suffers from a complete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule.

8The Ontario Court of Appeal² set out the approach to determining whether an insured has satisfied the s. 3(7) test:

(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 of time prior to the accident. The duration 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 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 the 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.

9Applying these principles, I find on the evidence that the applicant is not entitled to a non-earner benefit for the period in dispute for the following reasons.

Issue I – Is The Applicant Entitled To A Non-Earner Benefit?

10The applicant submits that as a result of the motor vehicle accident, he suffered both physical and psychological injuries that caused his complete inability to carry on a normal life. The applicant received a non-earner benefit from August 29, 2016. However, the respondent stopped the non-earner benefit on January 13, 2017 based on the reports of Dr. Finkelstein, Dr. Syed and Christina Kovacic. The respondent submits that the applicant has failed to discharge his onus of proving he has suffered a complete inability to carry on a normal life. Based on my review of the medical reports and other documents before me, I find that there is insufficient evidence to prove that the applicant suffers from a complete inability to carry on a normal life.

11The applicant relies on an OCF-3 dated March 7, 2016 completed by Dr. Alexander Yu, a chiropractor. Dr. Yu states that the applicant suffers a complete inability to carry on a normal life. The explanation provided is “[A.B.] has complained about daily nightmares and increased anxiety levels which has hindered his day to day activities. As such this can delay his recovery.” He also indicates that the applicant has a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident but makes no reference to the applicant’s living arrangements or whether the applicant is assisted by his girlfriend, her family or his mother. Dr. Yu’s Disability Certificate gives little detail and simply gives a general explanation. Dr. Yu does not list the pre-accident activities or explain how the applicant is unable to engage in substantially all of these activities as a result of injuries sustained in the accident. Rather, Dr. Yu writes a general explanation lacking in any relevant specificity. Dr. Yu writes “He constantly complains of headache since the car accident… is diagnosed with Post Traumatic Stress Disorder. Psychological Evaluation is recommended” but Dr. Yu does not list any medications. Because of the lack of specificity in this Disability Certificate, I give it little weight.

12Although the applicant saw Dr. Gupta, his family physician, on the day of the accident, March 1, 2016, and again March 10, 2016 and April 28, 2016 and reported neck pain, back pain, left-sided sciatica, headaches, insomnia, anxiety and irritability, the applicant did not report any limitations with respect to his activities of daily living to Dr. Gupta on these three visits. The records of Dr. Gupta do not record ongoing complaints after April 28, 2016 but instead noted prescriptions. More importantly, Dr. Gupta has not delivered an opinion that the applicant suffers a complete inability to carry on a normal life post-accident. Although Dr. Gupta made a referral to a psychiatrist in March 2016, there was no evidence before me that the applicant ever saw a psychiatrist.

13The applicant relies on the psychological rehabilitation screening report of Dr. Gabidulina, a psychologist dated May 4, 2016 which reports on the April 22, 2016 assessment of the applicant on referral from his family physician. Dr. Gabidulina diagnosed Depressive Episode, severe and Situational (isolated) Phobia, moderate and noted that many of the applicant’s daily living activities are compromised as a result of his pain. Dr. Gabidulina wrote “The client identified the following activities from which he was currently restricted: studying (he is currently taking English classes), preparing food, vacuuming, dusting and tending to other household chores. His mother helps him with housekeeping.” Dr. Gabidulina reported that post-accident the applicant’s sleep pattern had been interrupted in that he slept 5-6 hours a night after the accident and prior to the accident he slept 8 hours a night. She also reported he no longer procures pleasure from meeting with friends, laughing and going out, has a foreshortened sense of the future, an exaggerated startle response and a preference for quiet. Dr. Gabidulina’s report appears to be a preliminary assessment as the report concludes with a request for authorization to conduct a psychological assessment in order to provide diagnosis, identify possible impairments, ascertain whether or not psychological intervention would help the applicant. This report is given little weight as it has been outweighed by more recent evidence about the applicant’s return to pre-accident activities as set out below.

14A psychological assessment report from Dr. Peric-Todorovic, a psychologist, dated June 12, 2016 diagnosed the applicant with Post-Traumatic Stress, Severe Depressive Episode without Psychotic Symptoms and Other Phobic Anxiety Disorder. Dr. Peric-Todorovic records that the applicant was looking for a plumbing apprenticeship but because of the requirement of bending he stopped considering this option, that the applicant’s level of social activity has “significantly” decreased post-accident, that pre-accident he went to the gym, exercised almost daily, played soccer, went to movies and socialized but now finds it difficult to sit for a long time and has lost interest in it and his relationship with his girlfriend and others has changed. Dr. Peric-Todorovic’s report is given little weight as it has been outweighed by more recent evidence about the applicant’s return to pre-accident activities as set out below.

15The applicant was assessed by Dr. Mosaad from The Pain Clinic on March 16, 2017 who diagnosed the applicant with myofascial pain syndrome, depression, paraspinal muscle spasms and a possibility of malingering. Dr. Mosaad notes that the applicant declined the trial of nerve blocks which Dr. Mosaad suggested. More importantly, Dr. Mosaad has not delivered an opinion that the applicant suffers a complete inability to carry on a normal life post-accident.

16The applicant also relies on an updated Disability Certificate completed by Dr. Pham, a chiropractor, dated April 12, 2017 – some 13 months after the accident. Dr. Pham states that the applicant suffers a complete inability to carry on a normal life. The explanation provided in this Disability Certificate is “He is unable to participate in daily activities as before. He has trouble with memory and feels depressed since the accident. He is in constant pain and lacks motivation.” He also indicates that the applicant has a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident but makes no reference to the applicant’s actual living arrangements or whether the applicant is assisted by his girlfriend, her family or his mother. He writes “[A.B.] has complained about daily nightmares and increased anxiety levels which has hindered his day to day activities. He reports being in constant pain and contributes the accident to affecting his entire life….” Although Dr. Pham’s Disability Certificate indicates that the applicant suffers a complete inability to carry on a normal life, he gives little detail and simply gives a general explanation. Dr. Pham does not list the pre-accident activities or explain how the applicant is unable to engage in substantially all of these activities and writes a general explanation lacking in any relevant specificity. Dr. Pham recommends a psychological evaluation to determine signs of mental distress, and a chronic pain assessment but does not list any medications. Because of the lack of specificity in this Disability Certificate, I give it little weight.

17I find that the Disability Certificates, reports and medical information put forward by the applicant are not enough to outweigh the reports of Dr. Finkelstein, Dr. Syed and Ms. Kovacic all of whom assessed the applicant with their respective expertise and did not find that he had a complete inability to carry on a normal life.

18There were no affidavits filed by the applicant about his pre-accident activities and how his impairments as a result of the accident have led to a complete inability to carry on with them post-accident. Further, the applicant’s self-reports of his pre-accident and post-accident activities vary and lack detail and corroboration. The submission made by the applicant’s legal representative that he is unable to carry on his normal life is not supported by the evidence before me.

19Regarding employment, the records before me show that applicant gave conflicting information to various doctors and assessors about his pre-accident employment. Therefore I am left with no reliable evidence which establishes on a balance of probabilities the applicant’s pre-accident employment activities. The applicant told Christina Kovacic, an occupational therapist, who conducted an occupational therapy in-home assessment of the applicant and rendered a report dated January 11, 2017, that pre-accident he was not employed or in school and post-accident he was not employed or in school. He told Dr. Gabidulina on April 22, 2016 that “…he is currently taking English classes…” He told Dr. Finkelstein that he was unemployed at the time of the accident. The applicant told Dr. Syed, a psychologist, who conducted a psychology and neuropsychology assessment of the applicant and issued a report dated January 11, 2017, both that pre-accident he worked at [a rental business] from July, 2015 to November, 2016 when he left because he was not getting enough hours but, later on during the assessment, he denied he was working at the time of the accident. He told Dr. Peric-Todorovic, a psychologist who assessed him and issued a report dated June 12, 2016 that prior to the accident he worked at [a rental business] for nine months until one year prior to the assessment (i.e. June 2015). Dr. Pham, his chiropractor, who signed a Disability Certificate on April 12, 2017, recorded that the applicant was not working and not enrolled in an educational program at the time of the accident, last worked November 30, 2015 and was not currently working in April 2017.

20An assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident must also be considered. In this case, I find that the evidence of the applicant’s pre-accident work history for 2015 and for two years post-accident is a reasonable period of time to consider. Post-accident, the applicant has been able to do some work. His 2017 Notice of Assessment shows that he earned $10,107.00 post-accident which is more than his pre-accident earnings of $9,686.00 shown in his 2015 Notice of Assessment. In March 2018, the applicant advertised on Facebook for car detailing services according to the respondent’s surveillance report dated December 17, 2018 and videos. The conflicting self-reporting provided by the applicant with respect to his pre and post-accident employment leaves me without any reliable evidence on which to base a consideration of the importance of work in the applicant’s pre-accident life. Further analysis of the applicant’s post-accident employment activities and earnings is not possible because the applicant failed to provide his 2018 Notice of Assessment or tax return or his pre and post-accident employment files even though he was ordered to do so by the Tribunal on May 9, 2019.

21Regarding self-care, the records before me show that applicant gave conflicting information to various doctors and assessors about his pre and post-accident abilities. Therefore I am left with no reliable evidence which establishes on a balance of probabilities the applicant’s pre-accident ability to care for himself. He told Ms. Kovacic that pre-accident he was independent with all personal care tasks. Post-accident he said he was living with his girlfriend and her parents who were assisting him. However, he refused to participate in any part of Ms. Kovacic’s assessment, other than the self-report of his own abilities. The applicant told Dr. Finkelstein that he was living with his mother both pre and post-accident and that his mother assisted him with dressing and showering post-accident. The applicant told Dr. Syed that he was having difficulty with his self-care and being slower but still had a desire to keep up his appearance post-accident.

22Regarding housekeeping and home maintenance, the records before me show that applicant gave conflicting information to various doctors and assessors about his pre and post-accident abilities. Therefore I am left with no reliable evidence which establishes on a balance of probabilities the applicant’s pre-accident ability to care for himself. He told Ms. Kovacic that he was living with his girlfriend and her family and was receiving assistance with housekeeping and home maintenance from them. However, he refused to participate in any part of the assessment, other than the self-report, which foreclosed an assessment of his capabilities as of January 2017. The applicant told Dr. Finkelstein that he was living with his mother both pre and post-accident and that his mother assisted him with household chores. The applicant told Dr. Syed that his girlfriend and her mother were completing all housekeeping and home maintenance tasks. The applicant did not provide any evidence from the applicant’s mother, girlfriend or her family members to corroborate the applicant’s self-reports of self-care, housekeeping and home maintenance.

23Dr. Finkelstein’s report dated January 11, 2017 notes that the applicant’s examination was limited by his fear of movement, he declined to actively move his neck, shoulders and back, noted pain behaviours and noted that given the lack of consistent and reproducible objective findings on exam, the applicant did not suffer a complete inability to carry on a normal life.

24Although the applicant reported to Dr. Finkelstein that post-accident he lost interest in socializing and going to the gym and he reported to Dr. Syed that he no longer had the desire to go to the gym or play sports, the evidence shows otherwise. The respondent’s surveillance report dated December 17, 2018 and videos show that in August of 2018 the applicant posted a picture of himself jet skiing at a beach and, starting in October 2018, the applicant posted videos on his Instagram account of himself lifting weights. The records of [a gym business] show the applicant returned to the gym in April 2017.

25Dr. Finkelstein and Dr. Syed both found that the applicant did not suffer a complete inability to carry on a normal life. That the applicant post-accident advertised for work, returned to the gym, has been lifting weights, jet skiing and is active on social media is further evidence that he does not suffer from a complete inability to carry on a normal life.

26Where pain is the primary factor, it must be considered whether performing the activity with pain is such that the person is practically prevented from engaging in those activities. While the applicant may have reported pain, his pain is clearly manageable and does not prevent him from returning to the gym, lifting weights and jet skiing.

27I find that the applicant has not proven his entitlement to a non-earner benefit as he has not proven that he has a complete inability to carry on a normal life. The weight of the evidence before me is that the applicant’s physical and psychological injuries and any pain he may experience is not debilitating and has not prevented him from resuming pre-accident activities such as some employment and physical activities at the gym and elsewhere.

28Pursuant to Tribunal Order dated June 27, 2019, the applicant’s reply submission was to be served and filed by August 23, 2019 but was not sent until September 9, 2019, some time weeks past the deadline. The applicant did not provide any explanation for the delay or request for extension of time. The respondent did not consent to the late filing. Accordingly, I am not allowing the applicant’s reply submission to form part of the record of this written hearing. As the applicant’s reply submission is not part of the record, it is unnecessary that the respondent’s sur-reply submission be part of the record.

29I find that the applicant has not provided sufficient evidence to prove that he has a complete inability to carry on a normal life as the result of an impairment sustained in the accident. I find that the applicant is not entitled to a non-earner benefit for the period in dispute.

Issue II – Is The Applicant Entitled To Interest On Any Overdue Benefits?

30Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue non-earner benefit payments, no interest is payable.

CONCLUSION

31For the reasons outlined above, I find that the applicant is not entitled to a non-earner benefit as he does not suffer from a complete inability to carry on a normal life as the result of an impairment sustained in the accident.

32As no benefits are overdue, the applicant is not entitled to interest or a special award.

Footnotes

1. 1O.Reg. 34/10
2. 2Heath v. McLeod, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.