Released Date: 06/09/2020
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.H.]
Applicant
and
Aviva General Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
[L.H.], Applicant
Lawrence A. Berg, Counsel
For the Respondent:
Aviva General Insurance
Nisaa Khan, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was involved in an accident on February 2, 2018. She sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2Pursuant to the Case Conference Order of Adjudicator Ferguson dated November 12, 2019 (the “Order”), this application proceeded to a written hearing before me.
ISSUE IN DISPUTE
3The issues in dispute in this application are as follows:
i. Is the applicant entitled to receive a weekly non-earner benefit in the amount of $185.00 per week for the period from June 20, 2018 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to the benefits or interest claimed.
ANALYSIS
5The test for entitlement to a non-earner benefit is set out in section 12(1) of the Schedule. The applicant must prove that she suffers from a complete inability to carry on a normal life within 104 weeks of the accident.1 Section 3(7)(a) of the Schedule states that a person suffers from a complete inability to carry on a normal life if, as a result of the accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.2
6In order to establish entitlement to non-earner benefits, a variety of factors must be taken in to consideration. The Court of Appeal confirmed in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, at para. 50, that the analysis of the evidence should include the following3:
i. A comparison of the applicant’s activities and life circumstances before and after the accident.
ii. A consideration of pre-accident life and circumstances involves more than a snapshot of life in the timeframe immediately before the accident, but rather an assessment of the activities and circumstances over a reasonable period prior to the accident.
iii. All of the pre-accident activities in which the applicant ordinarily engaged in should be considered. Greater weight may be assigned to those activities which the applicant identifies as being important in his pre-accident life.
iv. It is not sufficient to demonstrate that there were changes in post-accident life. Rather, it is incumbent to establish that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.
v. To look at whether the applicant is “engaging in” an activity, the activity must be viewed as a whole. The manner in which an activity is performed, and the quality of performance post-accident must also be considered.
vi. An inquiry into whether the degree of pain experienced either at the time or subsequent to the activity is such that the applicant is practically prevented from engaging in those activities.
6In denying the applicant, the respondent relied on a multidisciplinary assessment report completed by Dr. Riaz Moolla and Ms. Kitty Shum dated October 29, 2018. Dr. Moolla conducted a physician assessment on September 27, 2018. Dr. Moolla concluded that while some impairments exist, namely mild weakness of the applicant’s right upper limb and sensory loss in the C7-T1 distribution, they did not constitute a complete inability to carry on a normal life.
7Ms. Shum completed an in-home assessment on October 15, 2018. Following that assessment, she concluded:
Given the nature of [the applicant’s] injuries, the time that has lapsed since [the applicant] sustained her injuries, [the applicant] demonstrated abilities during the assessment, and the review of the medical documentation, it is the assessor’s opinion that [the applicant] has the physical abilities to perform her normal life activities in a self-paced manner, safely and independently. [The applicant] did not sustain an impairment that continuously prevents the person from engaging in substantially all of the activities, which a person ordinarily engaged in before the accident. Thus, she does not present with a “complete inability to carry on a normal life.”
8In support of her case, the applicant is relying on a note from Dr. Roy, MRI reports, an email from Dr. Dimakis and two reports from Dr. Abuzgaya. The one page note purportedly from Dr. Roy lists the applicant’s symptoms from February 2, 2018. I am not assigning any weight to this note because I cannot even confirm that this is from Dr. Roy. The doctor’s name, letterhead, signature and date are missing.
9In the email from Dr. Dimakis dated February 18, 2020, he states that she would meet the criteria for the non-earner benefit. However, he has not provided medical evidence to substantiate his opinion. Accordingly, I assign little weight to this email.
10The applicant has also submitted multiple MRI reports in support of her case. The results of the MRI of the right shoulder dated June 6, 2019 found that the applicant had a mild rotator cuff tendinosis without significant rotator cuff tearing. It was also found that there were signal changes at the superior and anterosuperior labrum. The MRI of the cervical spine dated September 10, 2019 notes that there was degenerative disc disease with small disc osteophyte complexes. There was no significant spinal canal narrowing. It was discovered that there multilevel narrowing of the neuroforamina, most severe at C4-C5. The MRI of the right shoulder dated September 10, 2019 found that there was mild to moderate rotator cuff tendinosis.
11While I acknowledge that the diagnostic imaging shows some degree of pathology, I did not find it determinative when considered in the context of the totality of the evidence before me. The applicant has failed to explain how she would meet the non-earner benefit test based on the diagnostic imaging. Submitting diagnostic imaging on its own is not sufficient enough. I would have expected that the applicant would have provided clinical notes and records, evidence of treatment and referrals to specialists that ties her pain-related complaints to the diagnostic findings.
12The applicant is relying on two reports from Dr. Abuzgaya in support of her case. She first met Dr. Abuzgaya on April 10, 2019 for an independent orthopaedic evaluation. This assessment took place almost over a year after the accident.
13In his report dated May 7, 2019, Dr. Abuzgaya opined that the applicant’s accident-related diagnosis is consistent with cervical sprain, possible C7-T1 disc herniation, and right shoulder soft tissue injury, with possible rotator cuff pathology. He stated that:
It is clear that [the applicant’s] pathology from the neck and right shoulder has been significantly exacerbated as a result of the motor vehicle accident of February 2, 2018. In my opinion, exacerbation of this underlying pre-existing medical condition will impede her recovery and will take her out of the minor injury guidelines, as defined by the SABS.
14On October 24, 2019, Dr. Abuzgaya completed an addendum report based on his previous examination and additional medical evidence. He reviewed the additional diagnostic reports that were completed and the insurer’s examination report by Dr. Moolla. He concluded that “in my opinion, based on my findings of April 10, 2019, [the applicant] continues to suffer a complete inability to carry on a normal life as a result of the injuries sustained in the motor vehicle accident of February 2, 2018.”
15I prefer the reports from Dr. Moolla and Ms. Shum over the reports from Dr. Abuzgaya. Dr. Moolla and Ms. Shum assessed her for the purposes of determining whether she met the test for the non-earner benefit. Both conducted thorough examinations of the applicant and documented their findings. Their findings were consistent as they both concluded that she does not meet the test for the non-earner benefit from a physical and occupational therapy standpoint. I find that there is limited evidence to refute the findings in these reports that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident.
16Although Dr. Abuzgaya opined that the applicant suffers a complete inability to carry on a normal life as a result of the accident, he has not provided a cogent or supported explanation as to how he arrived at this conclusion. His findings are based on his prior examination, Dr. Moolla’s report and review of additional medical evidence. He stated that the applicant’s functioning with respect to the use of her right shoulder remains limited and affects her ability to perform the normal daily activities that she performed prior to the accident. However, he does not provide an analysis as to how this limitation would result in her complete inability to carry on a normal life. He should have connected the dots.
17As noted in Heath, 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. Although the applicant has reported that she experiences pain, her pain is clearly manageable and does not practically prevent her from independent self-care or engagement in other activities like housekeeping. In fact, it was reported by Dr. Moolla that “she states that she was presently able to do substantially all of her housekeeping activities.” The applicant has not provided enough medical evidence to substantiate that she has a complete inability to live a normal life because of this pain.
18Heath also requires an assessment of the applicant’s pre-accident activities and life over a reasonable period of time prior to the accident. In his report dated May 7, 2019, Dr. Abuzgaya provided a chart of the applicant’s self-reported activities of daily living before and after the accident. Aside from this report, the applicant has not advanced any evidence or submissions regarding her 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. There is no information regarding how much time she spent on each of her pre-accident activities or on how much value and importance she placed on each. In the absence of this information, it is difficult, if not impossible, to compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
19Furthermore, it is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his or her pre-accident activities. The phrase “continuously prevents” means a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”4. I find that the applicant has not provided enough evidence to demonstrate that these changes have continuously prevented her from engaging in substantially all of her pre-accident activities.
20Based on the reasons above, the applicant has failed to satisfy me that she is entitled to non-earner benefits on the basis of the evidence that was presented.
ORDER
21The applicant is not entitled to the non-earner benefits for the period in dispute.
22Since I have found that she is not entitled to these benefits, she is also not entitled to any interest claimed.
23The application is dismissed.
Released: June 9, 2020
Tavlin Kaur
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule, O Reg 34/10
- Ibid.
- 2009 ONCA 391 at para 50.
- Ibid.