Released Date: 04/17/2020
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. H.]
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR: Paul Gosio
APPEARANCES:
For the Applicant: [H. H.], Applicant Alexei Antonov, Counsel
For the Respondent: Aviva General Insurance Thomas Hughes, Counsel
HEARD: In-Person: June 12, 13 and 14, 2018
OVERVIEW
1The applicant seeks a determination that she is entitled to a non-earner benefit and an award claim.
2The applicant was involved in a motor vehicle accident on July 2, 2016. She applied for non-earner benefits in the amount of $185.00 per week pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (“Schedule”). The respondent takes the position that the applicant did not suffer a complete inability to carry on normal life as a result of the accident as is therefore not entitled to non-earner benefits.
3The applicant disagreed with the respondent’s position and filed an Application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issue in dispute, so the matter proceeded to an in-person hearing.
ISSUE IN DISPUTE
4The following issues are in dispute:
I. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period July 30, 2016 to-date and ongoing?
II. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?
III. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on a totality of the evidence before me and for the reasons set out below, I find that the applicant is not entitled to receive a non-earner benefit and as a result, is not entitled to interest or an award.
NON-EARNER BENEFIT
6The test for entitlement to a non-earner benefit is set out in s. 12(1) of the Schedule. Section 12(1) states that an insurer shall pay a non-earner benefit to an insured person who suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
7Section 3(7)(a) of the Schedule further explains that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, 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.
8The phrase “substantially all” is not defined in the Schedule. In the case of Galdamez v. Allstate Insurance Company of Canada1 the Court of Appeal held that “substantially all” does not mean “all”. Arbitration decisions from the Financial Services Commission of Ontario [FSCO] have held that “substantially all” means “more than most, a goodly number or a majority of the pre-accident activities.”2 While I am not bound by FSCO decisions, I find the definition of assistance and interpret the phrase “substantially all” to mean more than most, a majority, but not all activities.
9In addition to this, the parties submit that the principles outlined in the Court of Appeal decision in Heath v. Economical Mutual Insurance Company apply (“Heath”).3 In Heath, 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.
10The Court of Appeal also outlined the proper analytical approach that one should take when determining entitlement to a non-earner benefit. This approach includes a consideration of the following:
I. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
II. 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.
III. 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.
IV. “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” that activity.
V. 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 physically perform those activities.
11In this case, there is no dispute that the applicant became impaired within 104 weeks of the accident. The key question in this case is whether the applicant’s impairment continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident or, in other words, those activities that constituted a normal life for her.
12The onus of proof rests on the applicant to prove on a balance of probabilities that she is entitled to the non-earner benefit claimed. Based on the evidence before me, I find that the applicant has not proven that she meets the test for non-earner benefits.
Pre-Accident Life
13The applicant was married when she was 15 years old. Her husband was physically and mentally abusive towards her and she indicated that she left the marriage after having an emotional breakdown. The applicant began experiencing depression and anxiety in 2006 and became divorced in 2007. She saw a social worker for approximately 9 months between 2008 and 2009 and believes that she had been suffering from Post-Partum Depression. The applicant indicated that despite these mental health issues, she led an otherwise active lifestyle.
14The applicant testified about the activities she ordinarily engaged in prior to the accident. It was essential for her to: take care of her daughter; perform the household chores including cooking and preparing meals; take care of herself and always be well groomed; and maintain positive relationships with her partner and friends. The applicant explained that taking care of her daughter was particularly important to her and as a result, I have placed greater weight on this aspect of her life.
15On or about May 30, 2016, the applicant lost most of her possessions in a fire. She saw her family doctor, Dr. Varughese, the following day who provided her with supportive counselling. Dr. Varughese described this incident as a difficult moment for the applicant but that she was able to manage.
Post-Accident Life
16The applicant reported that she was in shock, scared and experiencing a headache immediately after the accident. Her feelings were exacerbated due to the fact that her 2-year-old daughter was in the back seat of the vehicle at the time of the accident.
17The applicant was taken to [a hospital] by ambulance. She was examined by a physician and underwent x-rays which yielded normal results. She was given pain medication and instructed to follow up with her family doctor.
18The applicant reported that she began to experience a fear of travelling in a vehicle the night of the accident. She described experiencing severe pain in her back and head. She indicated that she had not slept since the fire, but that the accident began to make sleep even more difficult.
19On July 4, 2016, the applicant went to see her family doctor, Dr. Varughese. Dr. Varughese examined the applicant, prescribed her pain medication and recommended chiropractic and physiotherapy services in order to help facilitate her recovery. Dr. Varughese’s clinical notes and records also indicate that the applicant discussed possibly leaving her husband due to his possible infidelity and controlling behaviour.
20A Disability Certificate (“OCF-3”) dated August 22, 2016, was completed by Dr. Hefford, chiropractor. Dr. Hefford identified the applicant’s injuries as: cervical spine strain/sprain, thoracic spine strain/sprain, lumbar spine sprain/strain, post-traumatic headache, behaviour – other anxiety disorder, behaviour – other sleep disorder, heel pain (bilateral), arm and shoulder unspecified injury bilateral. The Disability Certificate indicates that the applicant meets the test for the non-earner benefit as well as a substantial inability to perform her housekeeping, home maintenance and caregiving tasks. Dr. Hefford opined that the applicant “has multiple barriers to recovery, emotional and sleep disturbances and that the anticipated duration of the disability is more than 12 weeks.
21The applicant saw Dr. Varughese again on October 27, 2016. She disclosed that her partner was being unfaithful, verbally abusive and controlling the finances. The applicant was advised to start counselling.
22Dr. Shaul, psychologist, assessed the applicant on November 22, 2016 and prepared a Psychological Report dated December 14, 2016. Dr. Shaul diagnosed the applicant with Major Depressive Disorder, Adjustment Disorder with Anxiety and Specific Phobia (travelling in and around a vehicle). He opined that the psychological and emotional difficulties are in large part a direct consequence of her physical condition. Dr. Shaul was not provided with any information about the applicant’s post-accident abusive relationship and did not opine on whether the applicant met the test for non-earner benefits.
23On March 13, 2017, the applicant contacted Dr. Varughese in order to request an urgent appointment. The applicant indicated that her husband was very abusive and threatened to throw her off the balcony, so she left the home.
24Dr. Varughese’s clinical note and record from August 22, 2017, indicates that the Children’s Aid Society had become involved with the applicant due to her partner’s abusive behaviour. She reported continued incidents of verbal abuse and that she was quite stressed and that she had separated from her husband who had been “controlling her life.” She indicated that she had a safety plan in place, feels helpless and may need to consider a shelter.
25Dr. Shaul reassessed the applicant on March 26, 2018 and prepared a Psychological Re-Assessment Report dated April 8, 2018. Dr. Shaul was provided with additional information, including information regarding the applicant’s post accident abusive relationship. Dr. Shaul again diagnosed the applicant with Major Depressive Disorder, Adjustment Disorder with Anxiety and Specific Phobia (travelling in and around a vehicle). Dr. Shaul indicated that the diagnoses are a result of the accident while acknowledging that the applicant had prior mental health issues, was involved in an abusive relationship and had recently lost most of her possessions in a house fire.
26It was Dr. Shaul’s opinion that the applicant’s impairments continuously prevent her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. He supported his position by noting the following:
She noted that her physical pain is still adversely affecting her ability to perform her daily activities. She continues to suffer from elevated levels of anxiety, irritability and sadness. She has become overwhelmed quite easily. She is having trouble with her sleep and is experiencing low energy levels. She lacks interest and desire to participate in previously enjoyed activities. She is fearful to leave her home. She is socializing less and generally more avoidant, which causes her to be isolated and lonely further contributing to her sadness. She is experiencing significant cognitive difficulties. Additionally, she continues to experience fear and anxiety towards travelling in or near a vehicle.
27The applicant testified that she continues to experience pain throughout her body including her head, neck, back and shoulders. She reported that her injuries and resulting pain has limited her ability to perform functional tasks such as lifting, bending, carrying, sitting, standing, kneeling and walking for extended periods of time.
28With respect to her psychological state, the applicant explained that she has become irritable and easily frustrated. She has also described feeling sad, down and depressed which she attributes to her lasting pain and limitations. The applicant further explained that she has been having trouble sleeping since the accident and that this has made her physical and psychological issues even more difficult to cope with.
29The applicant also testified with respect to how her physical and psychological impairments have impacted her post-accident life. She explained that her physical limitations have made it difficult for her to interact with her daughter and give her a bath. She explained that her physical limitations have also affected her ability to perform her self care activities including dressing and undressing, bathing, combing her hair, and applying creams and lotions. Her physical limitations have also affected her ability to complete her household chores as she described difficulty with cooking, making the bed, vacuuming, sweeping, washing dishes, doing the laundry and doing the grocery shopping.
30The applicant then explained that her psychological condition has impacted her relationship with her partner, made her become socially withdrawn with family and friends and that it has caused her to no longer attend social gatherings.
ANALYSIS
31Based on the evidence before me, I find that the applicant has not met her onus in establishing that she suffers from a complete inability to carry on a normal life as a result of the accident.
32The applicant testified with respect to her activities and life circumstances post-accident. Post-accident, the applicant continues to attend to her child’s needs despite some pain. She continues to cook, just not as frequent as before, and is able to do some laundry and attend to light cleaning duties. She reported being able to complete her self care needs independently and employs pacing techniques if necessary.
33This evidence is consistent with the medical evidence before me. Dr. Sekyi-Otu conducted a s.44 orthopaedic surgeon assessment on December 15, 2016. Dr. Sekyi-Otu concluded that the applicant suffered uncomplicated myofascial strains to the cervical, thoracic and lumbar spines and to the shoulder girdles. His examination identified no objective signs of impairment that would prolong or perpetuate her reported symptoms. Dr. Sekyi-Otu opined that there were no musculoskeletal symptoms or conditions that would prevent the applicant from resuming her pre accident activities of daily living including her pre accident care giving tasks and pre accident housekeeping tasks.
34Dr. Ratti conducted a s.44 psychological assessment on behalf of the respondent on December 2, 2016. Dr. Ratti concluded that there was no evidence that the applicant’s psychological factors result in any functional limitations and as such, does not meet the test for a non-earner benefit. Dr. Ratti also noted that the applicant reported being able to manage her child’s needs despite pain, performs laundry, some cooking, light cleaning and that she was completing activities of self care independently.
35Although the applicant demonstrated that there were some changes in her post accident life with respect to the scope, frequency and duration with which she engaged in some of pre-accident activities, she failed to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her pre-accident activities.
36The evidence before me establishes that the applicant, from a qualitative perspective, can still perform many of her pre accident activities, including attending to her child care needs, without significant restrictions. The degree of pain the applicant experiences with respect to some of her pre accident activities does not practically prevent her from performing those activities.
37Therefore, based on the totality of the evidence before me, I find that the applicant does not suffer from a complete inability to carry on a normal life and does not qualify for a non-earner benefit under the Schedule. As a result, the applicant is not entitled to interest or an award.
CONCLUSION
38For the reasons outlined above, I find that:
I. The applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period July 30, 2016 to-date and ongoing and therefore no interest is owing; and
II. The applicant is not entitled to an award under Ontario Regulation 664.
Released: April 17, 2020
Paul Gosio
Adjudicator
Footnotes
- Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, 111 OR (3d) 321 at para. 39.
- Bobeta and Aviva Canada Inc., FSCO File No. A14-006479 (October 31, 2016) at page 5.
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (2009) 95 OR (3d) 785.```