LV v. Aviva Insurance Company of Canada, 2020 CanLII 14487

Citation: LV v. Aviva Insurance Company of Canada, 2020 ONLAT 18-012245/AABS

Tribunal File Number: 18-012245/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:

LV

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Piera A. Segreto, Counsel

For the Respondent: Amanda Fowler and Patrick Sinclair, Counsel

HEARD In Writing: September 24, 2019

OVERVIEW

1The applicant LV ("applicant"), was involved in an automobile accident on September 5, 2016. He previously applied for and was denied income replacement benefits from the respondent, Aviva Insurance Company of Canada ("respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ ("Schedule"). He appealed the denial to the Licence Appeal Tribunal - Automobile Accident Benefits Service. The Tribunal made a decision on August 22, 2018 that he did not qualify for income replacement benefits.

2Following that decision, the applicant sought and was denied a non-earner benefit by the respondent also under the Schedule. He then applied to the Tribunal for dispute resolution.

3The application for the non-earner benefit is now before me, by a hearing in writing.

ISSUES TO BE DECIDED

4The issues before the Tribunal are:

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from March 6, 2017 to date and ongoing?

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

iii. Is the applicant entitled to a "special award" under s. 10 of Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments?

RESULT

5I 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. No payments were unreasonably withheld or delayed and therefore the applicant is not entitled to a special award.

ANALYSIS

6Section 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 a result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.

7Section 3(7)(a) further provides that a person suffers a "complete inability to carry on a normal life" if that person sustains 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.

8The 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.

9The Ontario Court of Appeal² set out the approach to determining whether an insured has satisfied the s. 3(7)(a) test:

• There must be a comparison of the applicant's activities and life circumstances before the accident to those post-accident.
• 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.
• 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.
• 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.
• "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.
• 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.

10Applying 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?

11The respondent submits that because another member of the Tribunal rendered a decision on August 22, 2018 that res judicata applies to the findings of fact made in that decision. I disagree. The previous decision of the Tribunal addressed the applicant's entitlement to an income replacement benefit did not determine the applicant's entitlement to a non-earner benefit. I have considered the evidence and submissions before me as they relate to the issues I must determine.

12The applicant submits that he suffers from a complete inability to work and live his normal life because he has psychological impairment and widespread and diffuse pain as a result of the injuries he suffered in the accident. 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 attached to the applicant's submissions, I find that there is insufficient evidence to prove that the applicant suffers from a complete inability to carry on a normal life.

13The applicant relies on a December 2016 OCF-3 completed by his family physician, Dr. Sheffield. However, in this Disability Certificate, Dr. Sheffield indicated that the applicant did not have a complete inability to carry on a normal life. In his medical letter dated July 18, 2017, Dr. Sheffield wrote that the applicant had reported slow healing but believes that any residual pain is from another cause. In this letter, Dr. Sheffield did not record any other accident related injury or complaint.

14The weight of the evidence before me is that the applicant's psychological condition and any pain he may experience is not debilitating and has not prevented him from working at his pre-accident occupation and resuming substantially all pre-accident activities after the accident. The reports of Dr. Salerno, Dr. Naamans and Mr. Campos submitted by the respondent, taken together, show that the applicant's daily activities have substantially returned to his pre-accident routine. Based on the totality of the evidence, I find that the applicant's alleged impairments do not continuously prevent him from engaging in substantially all of the activities in which he engaged before the accident.

15The evidence which might tend to indicate otherwise is from Dr. Romeo Vitelli's psychological assessment dated July 5, 2017 and physiotherapist Sandy Pister's April 3, 2019 Disability Certificate.

16The applicant relies on the psychological assessment of Dr. Romeo Vitelli dated July 5, 2017 that diagnosed him with an adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress disorder and a non-organic sleep disorder. Dr. Vitelli noted the applicant was performing light housework with the assistance of his mother, was precluded from long periods of standing and walking, was having difficulty lifting and carrying and concluded that the applicant" currently suffers from an inability to perform his pre-accident activities of self care, housekeeping and vocational tasks as a Licensed Plumber. His current level of psychological functioning and perceived level of pain currently prevents him from performing the essential tasks of his daily living and vocational tasks".

17The respondent relies on the report of Dr. Fabio Salerno, psychologist, who conducted an insurer's Psychological Assessment of the applicant on July 17, 2017 and issued a report. Dr. Salerno diagnosed the applicant with adjustment disorder with depressed mood, noted some signs of self neglect in his appearance and recommended treatment. There is no evidence before me that the applicant attended any facility-based psychological treatment following his assessment by Dr. Salerno. Dr. Salerno reported that the applicant told him his rib fractures had healed and the applicant believed he does not require psychological treatment in relation to the accident. Regarding work, Dr. Salerno notes that the applicant said "...I told the union that I got into an accident. I do not know why they will not give me a job, or maybe there is no work this year?" Dr. Salerno records that when he asked the applicant if he would return to his employment as a plumber if a job is available, the applicant told him "Sure I would. Why not?" and confirmed that he was currently looking for work and calling his union hall every day. Dr. Salerno notes that the applicant stated "Everything is good there" when asked about his ability to perform housekeeping tasks, that the applicant told him he continues to spend time with friends, has resumed his hobby of building an electric bike but had run out of money, goes to read at the library daily and did not speak of any other changes in his social life or recreational activities post-accident when asked.

18The respondent relies on the March 13, 2018 Insurer's Examination report of Dr. Saad Naaman, a psychiatrist, who reported that the applicant has no ongoing impairment as a result of the accident and would be able to return to his pre-accident status and function. Dr. Naaman found that the applicant was neurologically intact, his muscle strength and deep tendon reflexes were intact, and he had full range of motion and is independent in all daily living activities.

19The respondent also relies on the April 12, 2018 Insurer's Examination report of Robert Campos, an occupational therapist. After assessing the applicant on March 29, 2018, Mr. Campos reported that the applicant told him that before the accident he enjoyed riding his electrical bicycle and his regular road bicycle, socializing with friends and going to the library to read and that he had resumed all these activities since the accident and was making a new electric bicycle for himself. Mr. Campos found that the applicant was able to perform all of his self-care, housekeeping and leisure activities independently.

20The respondent submitted a surveillance report dated May 9, 2019 which shows the applicant attending a financial institution and several retail outlets. It submits that no physical impairments or limitations were observed.

21The respondent submits that the applicant has returned to his work as a plumber since the accident in full capacity. The applicant was not working at the time of the accident and his pre-accident work history shows he worked nine of the fifteen months prior to the accident for three different employers and received EI benefits for some of the time he was not working. The applicant's post-accident work history shows he received EI benefits for five months, was calling the union and looking for work for some months and started working again on September 27, 2017. In the seventeen months following his return to work, the applicant worked some seven months for five different employers and then received EI benefits again for more than two months. The applicant's earnings in 2018 from one of the employers was $52,000.00 and his work ended at the most recent employer for shortage of work according to his Record of Employment.

22I am not persuaded by Dr. Vitelli's report and find that his report is outweighed by the reports of Dr. Salerno, Dr. Naamans, Mr. Campos and Dr. Sheffield. Dr. Sheffield, the applicant's family physician, indicated in December, 2016 that the applicant did not have a complete inability to carry on a normal life and in his letter dated July 18, 2017 wrote that the applicant had reported slow healing but believes that any residual pain is from another cause. Dr. Salerno, a psychologist, Dr. Naamans, a psychiatrist, Mr. Campos, an occupational therapist and Dr. Sheffield, LV's family physician all assessed the applicant with their respective expertise and did not find the applicant had a complete inability to carry on a normal life. More importantly, the applicant's own comments to Dr. Salerno, Dr. Naamans, Mr. Campos and Dr. Sheffield do not support that he had a complete inability to carry on a normal life. The applicant's looking for work and then returning to work as a plumber without any evidence of any significant restriction is further evidence that the applicant does not suffer from a complete inability to carry on a normal life.

23The applicant also relies on an OCF-3 completed by Sandy Pister, a physiotherapist, dated April 3, 2019 – approximately 2 years after the accident. The explanation provided in this Disability Certificate is "...client continues to experience difficulties to carry on his normal life, such that he is unable to engage in substantially all of the activities he normally performed pre-mva". Ms. Pister also indicates that the applicant had a substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident. She writes "It has been approximately 2.5 years and the client continues to experience pain symptoms that limit his ability to engage in his pre-mva tasks/activities."

24Although Ms. Pister's Disability Certificate indicates that the applicant suffers a complete inability to carry on a normal life, she gives little detail and simply gives a general explanation which merely restates the legal test. Ms. Pister does not list the applicant's pre-mva activities or explain how the applicant is now unable to engage in substantially all of these activities. Ms. Pister's explanation of the applicant's substantial inability to perform the housekeeping and home maintenance services that he normally performed before the accident is also general and lacking in any relevant specificity. She writes that it has been approximately 2.5 years and the client continues to experience pain symptoms that limit his ability to engage in his pre-mva tasks/activities. Ms. Pister recommends a chronic pain assessment to explore treatment options but does not list any medications. Ms. Pister records that the applicant first attempted to return to work in October 2017, "...albeit on an intermittent basis due to the injuries as sustained in the accident." Ms. Pister does not record that the applicant also worked on an intermittent basis pre-accident. Because of the lack of specificity in this Disability Certificate, I give it little weight.

25An 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 work history for 15 months before the accident and for two years post-accident is a reasonable period of time to consider. After the accident, the applicant was able to look for work through his union, was working again by September 27, 2017 and resumed his pre-accident work pattern of working and receiving EI benefits for some of the time he was not working. In this hearing, there 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. The submission made by the applicant through his counsel that he is unable to work and carry on his normal life is not supported by the work history records and reports filed by the respondent.

26I find on the evidence that the applicant has failed to establish the connection between any psychological condition and any pain he may experience and the injuries from the accident. The applicant's work history post-accident shows he is able to work and carry on his normal life. There is no significant evidence that the applicant has any functional limitation in his work as a plumber or in his day to day activities.

27Where 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 practically prevent him from working as a plumber, independent self-care or engaging in other activities such as socializing with his friends or going to the library to read.

28Although the applicant submits that he was on welfare/social assistance after the accident, there was no evidence of this before me that links it causally to the accident.

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 any 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.

Issue III – Is The Applicant Entitled To A "Special Award"?

31Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no non-earner benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there will be no award under Ontario Regulation 664.

CONCLUSION

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

Released: February 3, 2020

___________________________

Avril A. Farlam, Vice Chair

Footnotes

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