Boyce v. Aviva General Insurance, 2022 CanLII 23397

Citation: Boyce v. Aviva General Insurance, 2022 ONLAT 19-007703/AABS

Licence Appeal Tribunal File Number: 19-007703/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:

Connie Boyce

Applicant

And

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Connie Boyce, Applicant John Russell, Counsel

For the Respondent: Filomena Gazeis, Claims Representative Kristopher Angle, Counsel

Court Reporter: Sharon Kemp, Nimigan Mihailovich Reporting

HEARD: by Videoconference: January 11 and February 10, 2022

BACKGROUND

1Connie Boyce (the "applicant") was involved in an automobile accident on February 15, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). ¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2A case conference was held but the parties were unable to resolve the issues in dispute. The matter proceeded to a videoconference hearing where I heard the testimony of the applicant and insurer examination assessor (IE) Dr. Auguste, orthopaedic surgeon. This matter was heard back-to-back with the applicant's husband's file (Tribunal File No. 19-007704).

ISSUES

3I have been asked to decide the following issues:

1. Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from March 14, 2018, to February 15, 2020?

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

RESULT

4After considering both parties' submissions, and all of the evidence I find:

1. The applicant is entitled to a NEB in the amount of $185.00 per week from March 14, 2018, to December 31, 2018. She is not entitled to the NEB from January 1, 2019, to February 15, 2020.

BACKGROUND

5On February 15, 2018, the applicant a 67-year-old woman, was a passenger in a vehicle driven by her husband, which was involved in an automobile accident when their vehicle t-boned another vehicle making a left-hand turn. The air bags deployed, and their vehicle was deemed a write off. Police and paramedics attended the scene, and they were both taken by ambulance to the hospital.

6The applicant has been diagnosed with a concussion as well as soft tissue injuries to the right hand. She has also been diagnosed with a fractured sacrum (tailbone injury).

7In support of her entitlement to the NEB the applicant relies on a disability certificate (OCF-3) authored by Dr. Rodrigues, family doctor dated March 5, 2018, a letter of Dr. Rodrigues dated July 23, 2018, and an OCF-3 prepared by William Hunter, physiotherapist dated July 23, 2018. She also relies on the clinical notes and records (CNRs)² of Dr. Rodrigues and Eramosa Physiotherapy Associates (Eramosa). The respondent relies on the IE reports of Dr. Auguste, Ron Findlay occupational therapist and Dr. Desai authored in January 2020.

ANALYSIS

Is the applicant entitled to a non-earner benefit (NEB) in the amount of $185.00 per week from March 14, 2018, to February 15, 2020?

8I find the applicant is entitled to payment of NEBs from March 14, 2018, to December 31, 2018, for the following reasons.

9Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical³, which focuses on a comparison of the applicant's pre-and post-accident activities.

10The applicant provided the following testimony about her pre-accident activities:

a) She was independent with all activities of daily living. Prior to the accident she had fibromyalgia but had managed to cope with her symptoms and did not have any functional limitations.

b) She was the primary caretaker for her elderly mother and was responsible for talking her to and from appointments, as well as cooking, cleaning, and laundering.

c) She was very active within her Church and ran bible study group with her husband in their home which required regular hosting and entertaining. She was also involved in other charitable activities such as meals on wheels.

d) She was devoted to her family and was a very involved grandmother and often babysat her grandchildren. She was responsible for coordinating and hosting family functions such as Thanksgiving, Christmas, and Easter.

e) She was physically active and enjoyed going for walks, cycling, camping, and going on cruise vacations.

f) She also enjoyed reading.

11The applicant testified that post-accident her life has changed in the following ways:

a) She is limited in her ability to sit and walk because of her tailbone injury. She cannot go camping or watch her grandkids play hockey because the hard seats in the arena cause her pain.

b) In April 2018, she had to put her elderly mother in a long-term care home because she could no longer take care of her.

c) She has required assistance from her children with cleaning her home.

d) She is unable to play with grandchildren or partake in her pre-accident leisure activities.

e) She struggles to read and is unable to focus and multi-task because of post-concussive syndrome.

f) She is not as active within the Church and does not run bible studies or host and entertain those groups within her home.

12I find the applicant to be a credible witness and I believe her that her accident-related impairments resulted in a complete inability to carry on a normal life. However, I find that the medical evidence relied upon by the applicant only supports that she meets the threshold for NEB from March 5, 2018, to December 31, 2018.

13The medical evidence supports that the applicant sustained objective impairments as a result of the accident as she sustained a concussion and a fractured sacrum. The applicant relied on two OCF-3s in support of her entitlement to the NEB. However, the first OCF-3 completed by Dr. Rodrigues dated March 5, 2018, did not support that she met the disability test. The applicant relied on another OCF-3 dated July 23, 2018, completed by William Hunter, physiotherapist which supported entitlement. The applicant submits that Dr. Rodrigues had made an error in filling out the first OCF-3. I accept this explanation as the doctor acknowledged her mistake in a letter to the respondent dated July 23, 2018, indicating that she had filled out the form incorrectly. She also clarified that the applicant has been prevented from carrying out her pre-accident activities as a result of her accident-related impairments. In particular, Dr. Rodrigues states:

• The applicant cannot sit for longer than 15 minutes or on hard surfaces which has affected the applicant's ability to drive;

• Right hand pain has resulted in difficulty opening jars, washing, cleaning and gardening;

• Post-concussive symptoms have made it difficult for the applicant to attend social gatherings and church because the noise irritates her, which has resulted in poor mood and isolation. She has also been unable to read; and

• She has been unable to continue caring for her elderly mother which resulted in her mother being put in a long-term care facility.

14I give the applicant's testimony about her pre- and post-accident activities significant weight as her post-accident limitations were corroborated by her family doctor.

15The respondent relied on the IE of Dr. Auguste in support of its position that the applicant does not meet the disability threshold for entitlement to the NEB. Although Dr. Auguste's report did not support that the applicant had any ongoing physical impairment, of significance it was not completed until the 23-month mark, which is one-month before the applicant's entitlement to NEBs would expire under the Schedule. Consequently, I do not find it helpful in assessing the benefit for the time period of entitlement. Dr. Auguste also testified that she found the applicant to be credible. In addition, the doctor acknowledged that sacrum fractures can be quite painful and can take approximately four to six months to heal. I find this aligns with the applicant's testimony that she could barely walk or sit without pain for four months post-accident. In my view, an inability to walk or stand without pain for four months would continuously prevent the applicant from carrying out the majority of her pre-accident activities.

16I also find the applicant's impairments and limitations are supported by the CNRs of Dr. Rodrigues from February to December 2018. The applicant reported ongoing tailbone pain which resulted in limitations in the applicant's ability to sit and disturbed her sleep resulting in daytime fatigue. The applicant also reported post-concussion symptoms to Dr. Rodrigues as she complained of headaches, poor memory, and an inability to focus which impacted her ability to follow a recipe, read and multi-task. Based on a balance of probabilities the applicant has persuaded me that she suffered a complete inability to carry on a normal life up until the end of December 2018. However, I find there is a lack of medical evidence from January 2019 to February 15, 2020, that supports that the applicant had an ongoing impairment that resulted in a complete inability to carry on a normal life. By contrast, the records from 2019 onwards support that she made improvements. Therefore, I do not find that she has proven entitlement to the benefit from January 1, 2019, to February 15, 2020.

17The applicant has met her onus in proving that she suffered a complete inability to carry on a normal life as a result of her accident-related impairments from March 14, 2018, to December 31, 2018.

INTEREST

18The applicant is entitled to payment of interest on overdue payments of NEBs from March 14, 2018, to December 31, 2018.

19Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the applicant meets the disability test for payment of NEBs the applicant is entitled to payment of interest according to s. 51(1) of the Schedule.

ORDER

20For all of the above-noted reasons, the applicant is entitled to payment of the NEB in the amount of $185.00 per week from March 14, 2018, to February 15, 2020, plus interest payable in accordance with s. 51(1) of the Schedule.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Further to an email from the Tribunal to both parties dated February 15, 2022, the missing documents were located.
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.