Terrio v. Aviva General Insurance, 2021 CanLII 11886

Citation: Terrio vs. Aviva General Insurance, 2021 ONLAT 20-000524/AABS

Released: January 26, 2021

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:

Miranda Terrio

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Freda Vanopoulos, Counsel

For the Respondent: Cara Body, Counsel

HEARD: By way of written submissions

OVERVIEW

1Miranda Terrio (the “applicant”) was involved in a motor vehicle accident on January 28, 2018 (the “accident”). The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Aviva General Insurance (“respondent”) stopped paying non-earner benefits (“NEB”) to the applicant effective July 4, 2018 when it determined her ineligible.

3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

PRELIMINARY ISSUES RAISED BY RESPONDENT

4The respondent submits that the applicant must adduce all evidence upon which she intends to rely in the first instance and not in reply. This issue is moot. The applicant did not file any reply submissions.

5The respondent also submits that the applicant has made a number of factual allegations in her submissions without providing supporting evidence. This is not properly raised as a preliminary issue. I will determine the issues before me based on the evidence adduced by the parties and the submissions.

ISSUES

6The issues to be decided in this hearing are:

i. Is the applicant entitled to receive NEB in the amount of $185.00 per week from February 4, 2018 to date and ongoing?

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

RESULT

7I find that the applicant has not proven her entitlement to NEB. There is no interest. The application is dismissed.

LAW

8Section 12 of the Schedule requires an insurer to pay NEB 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.

9Section 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.

10The 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.

11The 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.

ANALYSIS

Is the applicant entitled to NEB?

12The applicant submits that she meets the test for a NEB as she suffers from a complete inability to carry on a normal life as a result of the accident. Although the applicant concedes that her medical history includes lumbar spine grade 1 spondylolisthesis at L5, right shoulder arthritis and bilateral knee pain, she submits that pre-accident her pain symptoms were well managed. The applicant submits that pre-accident, she was independent with self-care, shared indoor housekeeping tasks with her boyfriend including meal preparation, grocery shopping, floors, laundry and bathroom cleaning and shared outdoor maintenance. Her hobbies included doing crafts and going to bazaars. The applicant submits that although she was in receipt of social assistance, she was seeking employment with the assistance of employment advisors and had discussed opening her flower and gift shop again with her family physician Dr. MacTavish. The applicant submits that “most significantly”, pre-accident the applicant did not show any symptoms, signs or require assistance with bodily functions or bowel bladder control, consciousness (attentional focus, levels of consciousness), learning (language processing, mathematics, attention difficulties) memory, or to utilize commercial services (bank).

13In her June 21, 2018 accident benefits statutory declaration the applicant swore she sustained a concussion, cracked rib, blurred vision, dislocated hip, neck injury, shoulder injury, back injury, hand injury, sleep disturbance, mood changes, sleep walking, vertigo and memory loss.

14Post-accident, the applicant submits that her vertigo has caused her to fall down the stairs at her home a few times making it difficult to navigate stairs, she has difficulties with dressing, undressing and grooming. The applicant is unable to do her banking, grocery shopping or much of anything independent of her boyfriend due to mobility issues and has been unable to assist with any housekeeping chores. The applicant also submits that her pre-accident impairments have worsened and that her concussion with cognitive impairment has altered the nature of the disability and the impact her disability has on her activities of daily living. These injuries prevent her from resuming her pre-accident activities. The applicant also submits that a review of the respondent’s adjuster log notes suggests the respondent has not taken into consideration the complete medical file in denying NEB.

15The applicant’s submissions are not supported by the weight of the evidence. Applying the above principles, I find that the applicant’s evidence does not establish on a balance of probabilities that she suffers from a complete inability to carry on a normal life for the following reasons.

16Firstly, although the applicant concedes that her medical history includes lumbar spine grade 1 spondylolisthesis at L5, right shoulder arthritis and bilateral knee pain, she submits that pre-accident her pain symptoms were well managed. This is not supported by the applicant’s medical records documenting substance abuse as noted below. Further, the applicant herself and her physicians describe severe pain and limitation of function pre-accident.

17Secondly, the applicant submits that pre-accident, she was independent with self-care, shared indoor housekeeping tasks with her boyfriend including meal preparation, grocery shopping, floors, laundry and bathroom cleaning and shared outdoor maintenance. Her hobbies included doing crafts and going to bazaars. This is not supported by the applicant’s self-reporting or her pre-accident medical records as discussed below except for the December 18, 2017 note of Dr. MacTavish. At that time Dr. MacTavish noted that the applicant is making crafts and going to bazaars but also notes that the applicant is under increased stress due to the re-appearance of her abusive boyfriend, is in chronic pain, cannot sleep on her right side and is lonely. The majority of Dr. MacTavish’s records document that the applicant had several medical issues pre-accident.

18On February 24, 2017 the applicant self-reports to the Ontario Ministry of Community and Social Services (“Ministry”) that she has severe back damage and cannot stand, walk or sit for long periods of time, has had several broken bones and is in constant pain. The applicant also reports that her disability causes her physical, emotional and psychological difficulties, severe pain which stops her from completing her daily activities “a lot”.

19There is no evidence from the applicant’s boyfriend. There is no evidence from any other person indicating her pre-accident independence with self-care and shared tasks and hobbies that is not based on the applicant’s self-reporting, as for example, the applicant’s statement to an occupational therapist in April, 2018.

20Thirdly, the applicant was in receipt of social assistance³ at the time of the accident and continues to be in receipt of social assistance post-accident. Although the applicant submits that her attempts to find employment or to become self-employed have been hindered by her injuries post-accident, there is insufficient evidence of any substantial efforts to become employed or self-employed pre-accident.

21The applicant submits that pre-accident she was seeking employment with the assistance of employment advisors and had discussed opening her flower and gift shop again with Dr. MacTavish. Dr. MacTavish noted January 20, 2017 that the applicant said she is opening her flower and gift shop again. In the same note, Dr. MacTavish records that the applicant also said she had a problem with marijuana, wants Percocet every four hours and said she wasted 10 years of life with drug. Dr. MacTavish noted the applicant has a tender right shoulder and notes treatment will be given if the applicant’s urine drug screens are ok. A few days later, the testing ordered by Dr. MacTavish shows opioids detected. There is no evidence before me of any steps taken by the applicant pre-accident to become self-employed other than stating it as an intended goal.

22The applicant submits that pre-accident she was seeking employment with the assistance of employment advisors. This submission is at odds with the applicant’s pre-accident medical records and her own pre-accident statements about her ability to work. On January 12, 2017 Dr. McCormick, applicant’s physician, reports that the applicant has severe radicular pain down her left leg and has been unable to work since 2004 because of back issues. Dr. McCormick notes significant pain in her back when she stands and arches her back and notes that the applicant’s MRI shows she has severe facet joint disease and severe narrowing of the neural foramina at LS-S1 level. Dr. McCormick administers an epidural and has notes about her previous injection.

23On February 24, 2017 the applicant self-reports to the Ontario Ministry of Community and Social Services (“Ministry”) that in 2004 she had to stop attending college as she couldn’t sit in the classes or concentrate due to pain and that she owned a bar over 20 years ago but had to stop. The applicant reports that she has severe back damage and cannot stand, walk or sit for long periods of time, has had several broken bones and is in constant pain. The applicant states that she has tried several times to go back to work and caused more damage to her body as she is unable to walk even one half a block, her back and leg give out and she has “horrific” pain. The applicant reports she has been diagnosed with fibromyalgia, her teeth are almost all broken off from the medication and she is depressed. Dr. MacTavish’s February, 2017 pre-accident report to the Ministry and her clinical records substantially confirm the applicant’s statements and indicate further health concerns such as not sleeping, she is agitated without Percocet and clonazepam, recent drug tests were positive for cocaine and the applicant is generally going “downhill”. March 2017 records from a mental health clinic note additional drug use disorders.

24Fourthly, there is some indication that the applicant’s situation has improved post-accident. The applicant was able to work at Bada Bing Roadhouse for some six weeks in late 2018. Pre-accident, the applicant had not worked for many years. On August 1, 2019 Dr. MacTavish noted that the applicant was able to ride her bicycle and shop at a retail store. The report from Rod Tyndall, respondent’s assessor, notes that the applicant makes coffee, plays computer games, attends appointments, engages in hygiene tasks, smokes on the porch, washes dishes and watches television. This level of activity is corroborated by the respondent’s surveillance which shows the applicant cleaning a motorcycle, socializing with friends and running errands.

25Lastly, although the applicant submits that “most significantly”, pre-accident the she did not show any symptoms, signs or require assistance with bodily functions or bowel bladder control, consciousness (attentional focus, levels of consciousness), learning (language processing, mathematics, attention difficulties) memory, or to utilize commercial services (bank), as set above, the evidence shows that the applicant had several medical issues pre-accident. There is insufficient evidence to establish that, as the applicant submits, the above medical issues were caused or aggravated by the accident to the extent that the applicant suffers from a complete inability to carry on a normal life. The applicant’s self-reporting to the Ministry includes reports of learning and concentration issues severe enough that she had to leave college and also reports of inability to walk and sit. There is no significant medical evidence of any injuries from the accident resulting in significant impairment of bodily functions. The respondent’s surveillance shows that the applicant is able to access retail services post-accident.

26Although the applicant also submits that a review of the respondent’s adjuster log notes suggest the respondent has not taken into consideration the complete medical file in denying NEB, having reviewed the evidence submitted by both parties, I see no indication that the respondent failed to take into consideration the complete medical file in denying NEB.

27Having reviewed all of the evidence and based on the totality of the evidence, I find that the applicant has not discharged her burden to establish that she suffers from a complete inability to carry on a normal life as a result of the accident and as a result is not entitled to NEB for the period claimed.

Interest

28As there is no benefit payable, there is no interest.

ORDER

29For the reasons outlined above, I find that the applicant has not proven her entitlement to NEB. There is no interest. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Heath v. McLeod, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
3. 3Ontario Disability Support Program (“ODSP”).