Citation: Ruchlemer v. TD Insurance Meloche Monnex, 2022 ONLAT 20-005381/AABS

Licence Appeal Tribunal File Number: 20-005381/AABS

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:

Lydia Ruchlemer

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Kwaku Bona, Paralegal

For the Respondent:

Matthew Owen, Counsel

HEARD:

By way of Written Submissions

BACKGROUND

1The applicant, Lydia Ruchlemer, was involved in an automobile accident on August 17, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied a non-earner benefit by the respondent. She has submitted this application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to determine her entitlement to a non-earner benefit.

2The respondent, TD Insurance Meloche Monnex (“TD”), makes two submissions. It submits, as a preliminary issue, that Ms. Ruchlemer is barred by the provisions of s. 55(1)2. of the Schedule from applying to the Tribunal because she did not comply with her obligations to attend an insurer’s examination under s. 44 and cooperate with the assessor. According to the Case Conference Order, the preliminary issue is to be heard with the substantive issue. TD also submits that there is no evidence before me that Ms. Ruchlemer is completely unable to live a normal life.

3Originally, Ms. Ruchlemer sought an attendant care benefit. She has withdrawn that claim, and I will not address it further.

4I find, on a balance of probabilities, that I am unable to conclude that Ms. Ruchlemer failed to cooperate with TD’s assessor. Taking into account all of the circumstances of the assessment, I find Ms. Ruchlemer’s assertions that she could not perform the tasks asked of her by the assessor to be open to question, but there is insufficient support for me conclude that she deliberately failed to cooperate.

5I find that there is a total lack of cogent evidence to support a finding that Ms. Ruchlemer has a complete inability to live a normal life. Ms. Ruchlemer’s application to the Tribunal is dismissed.

PRELIMINARY ISSUE

6The preliminary issue as set out in the case conference order is:

a. Is the applicant barred from proceeding with her claim for a non-earner benefit … as she failed to submit to an insurer’s examination under section 44 of the Schedule?

7An applicant who has not submitted to an insurer’s examination arranged pursuant to s. 44, is prohibited from applying to the Tribunal for dispute resolution by virtue of s. 55(1)2. Section 55(1)2. states:

Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:

2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

8Section 55(1)2. has two components: that the notice complies with the Schedule and that the insured person has not complied with s. 44.

9While s. 44 allows for TD to arrange examinations to determine entitlement to benefits, there are rules. Examinations cannot be more often than reasonably necessary, and the notice of examination must set out the medical and other reasons for the examination. There is also a requirement that TD outline the qualifications of the examiner, give adequate notice of the date and time of the examination, and make efforts to accommodate Ms. Ruchlemer’s schedule. Failure to follow these rules may invalidate the notice of appointment such that the sanction against non-attendance is unavailable to TD. I see nothing in Ms. Ruchlemer’s submissions raising an issue with the adequacy of the s. 44 notice or the scheduling of the examination.

10It is trite law to say that an insurance contract is based on the utmost good faith. That duty of good faith applies to both parties, not just to TD. Section 44 codifies that duty for Ms. Ruchlemer’s attendance at an insurer’s examination. Subsection 44((9)2.iii provides that Ms. Ruchlemer is under a positive duty to: “attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.” Attendance by itself is not enough.

11Ms. Ruchlemer submits that she “became ill or unwell” during both assessments arranged by TD. To test this assertion, it is necessary to review the events around this assertion.

12Ms. Ruchlemer filed a Disability Certificate (“OCF-3”) indicating she had a complete inability to live a normal life on April 4, 2018, approximately one year and eight months post-accident. About 4 weeks later, on May 2, she underwent an In-Home Assessment with Menachem Gallor, an Occupational Therapist of her choosing. TD scheduled an assessment with Anna Matrasov, an Occupational Therapist of its choosing, for June 19, 2018.

13TD had scheduled Ms. Matrasov’s appointment for 10:00 a.m. on June 19. When Ms. Matrasov arrived at Ms. Ruchlemer’s home, she was advised that Ms. Ruchlemer was not home. She finally contacted Ms. Ruchlemer by cellphone and Ms. Ruchlemer and her husband advised that they were driving back from Wasaga Beach and were stuck in traffic on Hwy 400. The assessment finally got underway at approximately 11:45 a.m. According to Ms. Matrasov, the assessment proceeded as a joint assessment of Ms. Ruchlemer and her husband rather than the originally scheduled back-to-back assessments. After just over two hours, Ms. Ruchlemer stated she was feeling unwell and asked that the balance of the assessment be continued on another day.

14By agreement the assessment was continued on June 27, 2018. Ms. Matrasov reports that after an hour: “Ms. Ruchlemer reported she felt unwell and was experiencing severe back pain and headache; she asked that the assessment be discontinued and possibly rescheduled for another time. She refused to participate in the physical or functional assessment part of the evaluation. The assessment was terminated after 1 hour.” It is her refusal to participate in the physical and functional part of the assessment that TD relies on in support of its position.

15TD points to the fact that Ms. Ruchlemer had been able to complete similar physical tasks to those required by Ms. Matrasov when she had been assessed by Mr. Gallor two months earlier. Mr. Gallor noted his findings in chart form. While he records Ms. Ruchlemer’s performance of many of the physical and functional tests he asked Ms. Ruchlemer to perform, in every case he noted : “Able to perform albeit with difficulty due to … pain.” That the pain was also present when Ms. Matrasov attended and that Ms. Ruchlemer was reluctant to carry out tasks that might cause pain, due to her “pain focussed behaviours,” is understandable in these circumstances and does not amount to a refusal to cooperate.

16Section 55 does not raise a bar to Ms. Ruchlemer proceeding with this application to the Tribunal.

SUBSTANTIVE ISSUE

17There is one substantive issue in this matter: does Ms. Ruchlemer meet the test for entitlement to a non-earner benefit. If she does, she seeks interest on any amounts unpaid from when they became due, pursuant to s. 51 of the Schedule. In her submissions Ms. Ruchlemer also asserts that she is seeking an award under s. 10 of O. Reg. 664 because TD unreasonably withheld or delayed payment of her non-earner benefit. In her application to the Tribunal, Ms. Ruchlemer indicated that she was not seeking an award and it is not among the issues she agreed were in dispute at the case conference. Given my disposition of this matter, I need not address the question of an award.

18Entitlement to a non-earner benefit is set out in s. 12 of the Schedule. The applicable wording in that section states:

The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

1. The insured person 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.

19The term “complete inability” is further defined in s. 3(7) of the Schedule as:

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.

20The test for a non-earner benefit then reduces to a continuous inability to perform substantially all pre-accident activities. In examining that test, the Court of Appeal in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”) has set out a number of factors to be taken into account. At paragraph [50] the Court states:

Generally speaking, 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. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant's pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant's post-accident condition.

Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

Although this approach differs somewhat from the approach taken in Walker v. Ritchie, [2003] O.J. No. 18, 2003 CanLII 17106 (S.C.J.), in which the trial judge focused on those activities that were "most important" to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focused inquiry.

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 pre-accident activities. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted".

The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.

In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

21The Court concluded the test above by asking itself: Was there evidence led in this case that was capable of satisfying the test? In Mr. Heath’s case, the Court found there was no evidence. Similarly, in this case, I find that Ms. Ruchlemer has failed to satisfy her onus.

22Claims for a non-earner benefit are initiated by filing an OCF-3. Ms. Ruchlemer filed her first OCF-3 on May 25, 2017, completed by Chiropractor, Dr. Greenspan. In response to the question in Part 6 of the OCF-3, “Does the applicant suffer a complete inability to live a normal life,” Dr. Greenspan answers “No.” Thus the best evidence available about the Ms. Ruchlemer’s condition nine months post-accident is that she did not meet the complete inability test.

23Dr. Greenspan subsequently reissued the OCF-3 and TD received it on April 24, 2018. The reissued document is identical to the May 25 OCF-3 save and except that Dr. Greenspan has ticked the answer “Yes” to the question whether Ms. Ruchlemer suffers a complete inability to live a normal life. No explanation was given for this change of heart, nor was any medical information drawn to my attention showing a deterioration in Ms. Ruchlemer’s condition. Indeed, from her self-reports, she said the treatment she was receiving was beneficial and she only stopped when funds were no longer available.

24In reply submissions Ms. Ruchlemer makes a puzzling submission that the first OCF-3 was defective because Dr. Greenspan failed to tick the expected duration of Ms. Ruchlemer’s condition. In her submission, TD was under an obligation to send the report back for correction. I say puzzling because the question concerning time is triggered only if Dr. Greenspan answered “Yes” to the entitlement question. One cannot estimate how long good health will last in the same manner as one can estimate how long it may take to recover from a physical injury.

25The balance of Ms. Ruchlemer’s evidence concerning her before accident and after accident abilities is in Mr. Gallor’s record of what Ms. Ruchlemer told him about her abilities, and in the charts of her abilities. These charts fall far short of the evidence required under the Heath test. There is no identification of those activities Ms. Ruchlemer consider important to her life that she can no longer do. Her statements are not subject to any qualitative analysis. The chart indicates that she may be able to carry out a great many pre-accident activities with assistance, but that some activities do cause pain.

26In addition to Ms Ruchlemer’s report to Mr. Gallor, there are also the notes of Ms. Matrasov in her report showing greater function. Ms. Matrasov’s records:

On June 19, 2018 the claimant and her spouse arrived late to their appointment because they were reportedly returning from a visit with her brother in Wasaga Beach, Ontario. On June 27, 2018 Ms. Ruchlemer reported travelling to California with her husband in 2017. On June 27, 2018 the claimant's husband reported that he and Ms. Ruchlemer go to the mall on a usual basis, and socialize with friends over coffee.

27In describing her usual day, Ms. Ruchlemer stated to Ms. Matrasov that: “"A little bit later, we go [out] to eat breakfast." She reports that they go to a restaurant in the neighbourhood and that her husband drives. She states, "We just eat and run...The minute I finish the food I'm out. I can't sit any longer and I don't feel well."”

28I find there is little evidence that Ms. Ruchlemer is continuously unable to engage in substantially all of the activities she previously engaged in. She still visits relatives out of town and travels internationally. She still goes to restaurants to eat, and she socializes. To the extent that she reported lack of socialization as a major change in her lifestyle to Mr. Gallor, she is still capable of it, even in a somewhat reduced fashion than before.

CONCLUSION

29Having considered the evidence and submissions of the parties, I find that Ms. Ruchlemer has not satisfied her onus to show she is completely unable to live a normal life. She is not entitled to a non-earner benefit.

ORDER

30Ms. Ruchlemer’s application to the Tribunal is dismissed.