Released Date: 05/21/2020
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:
L. C.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Andrej Rondas, Paralegal
For the Respondent:
Hyla Korn, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, L.C., seeks a determination that she is entitled to a claim for a non-earner benefit (“NEB”), an award under O. Reg. 664, and interest.
2L.C. was involved in an automobile accident on April 19, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the ''Schedule'').
3The respondent, The Aviva General Insurance Company of Canada (“Aviva”), takes the position that L.C. did not suffer a complete inability to carry on a normal life as a result of the accident and is therefore not entitled to a non-earner benefit.
4L.C. disagreed with Aviva’s position and filed her application for dispute resolution with the Licence Appeal Tribunal – Automobile Accident Benefits Service (‘the Tribunal’).
ISSUES
5Since the Tribunal case conference, the parties have resolved some of the issues. As such, my decision will address the following issues:
a. Is L.C. entitled to receive a NEB in the amount of $185.00 per week for the period August 19, 2017 to date and ongoing?
b. Is L.C. entitled to an award under O. Reg. 664 because Aviva unreasonably withheld or delayed the payment of benefits?
c. Is L.C. entitled to interest on any overdue payment of benefits?
RESULT
6Based on the evidence before me, I find that L.C. is not entitled to a NEB for the period of August 19, 2017 and ongoing.
7As a result, L.C. is not entitled to interest or an award.
Is L.C. entitled to a non-earner benefit?
8In order to receive a NEB, L.C. must prove that, as a result of the accident, she suffers a complete inability to carry on a normal life.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 him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.2 Based on the evidence, L.C. has not established that she suffers from a complete inability to carry on a normal life.
9Aviva has already taken L.C. out of the MIG. However, as will be addressed below, L.C. relies on her physical pain complaints in support of her NEB entitlement claim. L.C. presented evidence of a psychological impairment as a result of the accident. That evidence was in support of her removal from the MIG.
10In support of her position, L.C. relies on two Disability Certificates (OCF-3s) dated April 28, 2017 and December 12, 2017 of Chiropractor, Dr. Wadehra. In the April 2017 OCF-3, Dr. Wadehra diagnosed L.C. with radiculopathy, cervical region, injury of muscle and tendon at neck level, sprains and strain of the thoracic and lumbar spine, dislocation, sprain and strain of joints and ligaments at wrist and hand level, tension-type headache, other anxiety disorders and disorders of initiating and maintaining sleep. The December 12, 2017 OCF-3 confirmed that L.C. continued to suffer from the same injuries. Dr. Wadehra noted that L.C. suffered a complete inability to carry on a normal life. The OCF-3 also indicated that L.C. suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. It should be noted the both the April and December OCF-3s note the anticipated duration of injury to be 9-12 weeks.
11In response, Aviva contends that L.C. does not suffer a complete inability to carry on a normal life. It submits that the evidence on which L.C. relies does not provide an accurate picture of her pre-accident state and life circumstances. Aviva points to L.C.’s failure to provide a comprehensive list of activities which she engaged in prior to the accident. Further, Aviva highlights that L.C. failed to provide any information with respect to which activities held more value than others. Aviva relies on the findings of its Insurer’s Examination (“IE”) assessors, Physiatrist Dr. Naiman and Occupational Therapist Gord Hirano. Dr. Naiman and Mr. Hirano concluded that L.C. did not suffer from a complete inability to carry on a normal life from a physical perspective. In sum, Aviva submits that L.C. is able to do many of her pre-accident activities, albeit with some difficulties.
12I find there was limited evidence led and no substantive submissions on L.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, upon review of the evidence, I was able to ascertain from her self-reporting that some of her pre-accident activities included: living on her own, gardening, driving, grocery shop, cleaning, as well as being social with family and friends. While these details are helpful, L.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. L.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 abilities with respect to the activities she ordinarily engaged in or valued, as Heath requires.
13While not required by the legislation, L.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 evaluate L.C.’s claim and certainly not enough to find that she meets 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 as a result of the accident have affected her daily routines, her function, or her most valued activities, from either a subjective or objective viewpoint. I find this oversight fails to support 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 portrayal of what constitutes L.C.’s “normal life” post-accident and how it has changed from her pre-accident life.
14Although I have a general understanding of L.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 activities3 or on how much value and importance she placed on each. While I am aware of L.C.’s reports of pain, I also find that she is not completely unable to do many things. Upon a review of the reports, I find she is able to travel abroad for extended periods of time, is independent with her self care, able to cook, wash dishes, use a computer, manage her money, grocery shop, do laundry, have her grandchildren over and is still able to drive.
15A portion of L.C.’s submissions focused on her pain and how it impedes her day-to-day living, specifically, as noted in the clinical notes and records of Family Physician Dr. Kovacs, her neck, back, arm and shoulder pain. 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.4 On L.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 as a result. However, although I find L.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 L.C.’s credit, based on the Rheumatology reports5 of Dr. Blagovich, it appears she is able to bend down and pick up clothing from the floor and walk two miles. Additionally, it appears L.C. is able to participate in sports and games. Accordingly, I find it difficult to determine how her pain practically prevents her from completing these tasks.
16The Heath test provides that the applicant may identify his or her “valued” activities of daily living and submit how, as a result of the accident, those 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 are generally afforded more weight. In her materials, however, L.C. did not identify activities that she placed greater weight or value on pre-accident.
17I find the test for NEB demands more evidence of impaired functionality and inability than L.C. provided. L.C. has failed to meet her onus to prove that she suffers a complete inability to carry on a normal life as a result the accident. Consequently, I find L.C. is not entitled to payment for the NEB.
AWARD
10Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer has “unreasonably” withheld or delayed payments.
11I have already found that L.C. is not entitled to a NEB, therefore Aviva cannot be found to have unreasonably withheld payment. As such, L.C. is not entitled to an award.
CONCLUSION
20L.C. has not met the onus on her to establish entitlement to an NEB. As such, no interest is owing as there is no overdue payment of benefits. L.C. is not entitled to an award. The claim is dismissed.
Released: May 21, 2020
___________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, at s. 12. 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).
- For example: How often did she spend gardening pre-accident? 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? Is she incapable of living alone now? What aspects of her relationships are strained post-accident, if any? etc.
- Heath, supra note 2 at para 50.
- Respondent Document Brief – Tab 9 and 10