Released Date: 02/05/2021
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:
Kavetta Bhagwandeen
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Richard Stancu, Paralegal
For the Respondent:
Samuel Davies, Counsel
Heard by Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1Kavetta Bhagwandeen (the “applicant”) was involved in a motor vehicle accident on December 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 September 16, 2019 when it determined her ineligible.
3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
ISSUES
4The 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 January 14, 2019 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has not proven her entitlement to NEB. There is no interest. The application is dismissed.
LAW
6Section 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.
7Section 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.
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) 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?
10The applicant submits that she meets the test for an NEB because she suffers from a complete inability to carry on a normal life as a result of the accident. She submits that at the time of the accident, she was attending college for therapeutic recreation and was volunteering as a dance assistant in a study on dance for patients at a university rehabilitation services centre. The applicant submits that her injuries from the accident include headaches, neck, back and shoulder pain, nervousness, stress, anxiety and sleep difficulties. Post-accident, the applicant submits that she missed a number of classes and had to defer and reschedule her final examinations. By the summer of 2019 she noticed a significant drop in her daily workout routines and physical activities which adversely began impacting her mental health and she was unable to work that summer due to pain in her arm and accompanying anxiety. The applicant accepted a position as a recreational therapist in January 2020 but submits that due to her physical limitation and feelings of inadequacy, had to cease employment. The applicant submits that because her left shoulder pain is constant and is aggravated by simple activities such as putting on a shirt, she cannot go to the gym regularly due to anxiety of her injuries worsening and she cannot do outdoor activities with her daughter such as hiking and kayaking.
11The applicant also submits that her pain and psychological injuries have negatively affected her relationship with her boyfriend as she has become more distant and argumentative, she can no longer drive to visit her mother in another municipality monthly because she feels anxious as a driver, especially in traffic, can only sleep five to six hours a night instead of eight hours pre-accident and does not feel well rested and energized. Also, the applicant submits she had problems concentrating on studying and has to read several times before she retains information, has a problem with decision making and thinks more about death or being better off dead since the accident. The applicant submits that dancing and being employed is a big part of her life and her ongoing physical and psychological limitations have forced her to cease engaging in the activities that she loves.
12The applicant’s submissions are not supported by the weight of the evidence. Applying the above principles, I find that the applicant’s evidence does establish on a balance of probabilities that she suffers from a complete inability to carry on a normal life for the following reasons.
13Firstly, there are no pre-accident or post-accident records submitted by the applicant from Dr. Erry, the applicant’s family physician, supporting the applicant’s submissions as to the injuries she says she suffered as a result of the accident except for a Request for Consultation form addressed to “West Durham Rehab” giving the reason “mva”. In the consultation form, Dr. Erry does not describe any injuries, any limitations and makes no diagnosis.
14Secondly, the applicant submits no records from any physician diagnosing any physical injuries described by the applicant except Dr. Hodby’s February 28, 2019 x-rays of the applicant’s cervical spine and left shoulder. Dr. Hodby finds “cervical pain or muscle spasm, medium-sized bilateral cervical ribs, no evidence of cervical spondylosis, slight superior subluxation of lateral end of left clavicle at left acromioclavicular joint, otherwise the bones and soft tissues of the left shoulder appear normal”. There is no opinion from any physician establishing that the February 2019 x-rays reveal any injuries that have resulted in the applicant having a complete inability to carry on a normal life as a result of the accident. The balance of the applicant’s evidence regarding her physical injuries is comprised of a consultation report from Dr. Avrahami, a chiropractor and orthopaedic physician’s assistant, two OCF-3, disability certificates from Dr. Dimakis, her chiropractor and Dr. Patel, her physiotherapist, two OCF-18, treatment plans, from Drs. Sapra and Ansari, her physiotherapists. None of these health professionals are medically qualified to diagnose physical injuries.
15Thirdly, there is no evidence of any referral by Dr. Erry to a physician specialist for psychological injuries as a result of the accident. The referral made by Dr. Erry is to “West Durham Rehab” and does not specify what injuries the applicant suffered in the accident. In the consultation form, Dr. Erry does not describe any psychological injuries, any limitations and makes no diagnosis of psychological injuries.
16Fourthly, applicant’s psychologist, Dr. Gronkowska states in both the August and November 2019 treatment plans, part 8, that the applicant’s activity limitations are unknown. In the December 30, 2019 report, Dr. Gronkowska diagnoses the applicant with major depressive disorder of moderate severity, post-traumatic stress disorder with driving/passenger anxiety and somatic symptom disorder with predominant pain in the December 30, 2019 initial psychological assessment. However, Dr. Gronkowska’s report is not enough to establish that the applicant suffers from a complete inability to carry on a normal life as a result of the accident because it indicates that the applicant can carry on a number of activities she carried on pre-accident. For example, Dr. Gronkowska’s notes that the applicant’s two children have been staying with her one week and the next week with her former husband pursuant to a shared custody arrangement, the applicant is attending college full time and has a placement where she works with adults with developmental disabilities. Dr. Gronkowska’s notes that the applicant’s memory is intact, her speech is appropriate and comprehension normal. Dr. Gronkowska notes that although the applicant tried isolating herself, she now tries to reconnect with her family and friends and can drive although with some difficulties and less frequently. Dr. Gronkowska’s report notes that the applicant has nightmares that are not related to the accident.
17Fifthly, although the June 20, 2019 disability certificate of Dr. Patel describes “other sleep disorders, nervousness” the anticipated duration of the disability is stated to be 9-12 weeks which would have expired about the end of September 2019. As a result, this disability certificate does not materially assist the applicant given that she seeks NEB after September 16, 2019.
18Sixthly, there are no records from the applicant’s college corroborating the applicant’s submission that she missed a number of classes and had to defer and reschedule her final examinations. Further, there is no evidence from the college as to whether the applicant completed her college program and graduated or not post-accident.
19Seventhly, there are no records from the rehab centre where the applicant says she was volunteering as a dance assistant in a case study for patients or from any other dance therapy program corroborating the applicant’s submissions about her pre-accident or post-accident participation, or lack of, in these programs.
20Eighthly, although the applicant submits that she was unable to work in the summer of 2019 due to pain in her arm and accompanying anxiety and was unable to continue with her employment as a recreational therapist in January 2020 due to her physical limitation and feelings of inadequacy, there are no records from any employer to corroborate these submissions. There is no evidence of any substantial efforts by the applicant to become employed post-accident other than the applicant’s self-reporting. Further, there is no evidence from any employer as to the applicant’s employment pre-accident.
21Ninthly, although the applicant submits that her psychological injuries have negatively impacted her relationships with her boyfriend, mother and daughter, there is no corroborating evidence from the applicant’s daughter, boyfriend or mother.
22Lastly, a reduction in the ability to sleep from eight hours pre-accident to five to six hours a night, while it might result in the applicant not feeling well rested and energized, does not amount to a complete inability to carry on a normal life as a result of the accident. The same can be said of the applicant’s submissions that she has problems concentrating on studying, has to read several times before she retains information, has a problem with decision making and thinks more about death or being better off dead since the accident.
23Having 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
24As there is no benefit payable, there is no interest.
ORDER
25For the reasons outlined above, I find that the applicant has not proven her entitlement to NEB. There is no interest. The application is dismissed.
Released: February 5, 2021
Avril A. Farlam
Vice Chair
Footnotes
- O. Reg. 34/10.
- Heath v. McLeod, 2009 ONCA 391; Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.```