Boyce v. Aviva General Insurance, 2022 CanLII 23398

Citation: Boyce v. Aviva General Insurance, 2022 ONLAT 19-007704/AABS

Licence Appeal Tribunal File Number: 19-007704/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:

David Boyce

Applicant

And

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

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

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

Court Reporter: Sharon Kemp, Nimigan Mihailovich Reporting

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

BACKGROUND

1David 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 (IE) assessor, Dr. Auguste, orthopaedic surgeon. This matter was heard back-to-back with the applicant’s wife’s file (Tribunal File No. 19-007703)

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 February 15, 2020, plus interest.

BACKGROUND

5On February 18, 2018, the applicant a 68 -year-old man, and his wife were 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. The applicant’s right hand was splinted as it was suspected that there was a fracture, and he was referred to a fracture clinic.

6The applicant has been diagnosed with a concussion, soft tissue injuries to his neck and back and a fracture of his right wrist as a result of the accident.

7In support of his entitlement to a NEB the applicant relies on the disability certificate (OCF-3) authored by Dr. Rodrigues, family doctor dated March 5, 2018, the report of Dr. Yardley dated April 15, 2019, treating orthopaedic surgeon and the clinical notes and records (CNRs) of Eramosa Physiotherapy Associates (Eramosa). The respondent relies on the IE reports of Dr. Auguste and Ron Findlay occupational therapist dated January 15, 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 a NEB for the time-period claimed for the following reasons.

9Section 12(1) provides that an insurer shall pay a 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. Economical², which focuses on a comparison of the applicant’s pre-and post-accident activities.

10I find that a comparison of the applicant’s pre- and post-accident activities supports that he has suffered a complete inability to carry on a normal life as a result of his accident-related impairments. The applicant provided the following testimony about his pre-accident activities:

a) He was independent with all activities of daily living and did not have any significant health issues resulting in any functional limitations.

b) He enjoyed working with his hands and was mechanically inclined. His main hobby included working on classic cars and woodworking.

c) He owned a large property and was responsible for all outdoor maintenance work including mowing the lawn and shovelling snow. He was an avid gardener, and his home was known in the neighbourhood for being meticulously kept.

d) He was responsible for the interior repairs and maintenance of the home.

e) He was very active within his Church and he and his wife ran a bible study group in their home which required regular hosting and entertaining.

f) He was a family man and was a very involved father and grandfather. He and his wife enjoyed hosting large family gatherings at Thanksgiving, Christmas, and Easter. He has three adult children and ten grandchildren whom he enjoyed playing with (i.e., swimming and playing baseball).

g) He was physically active and enjoyed going for walks, cycling, camping, fishing, and going on cruise vacations.

11The applicant testified that following the accident his life changed drastically in the following ways:

a) In the first year and a half post-accident he could do not do basic things such as shake hands with people, turn doorknobs or button up his shirt because of his right-hand impairment.

b) His son has taken over all outdoor maintenance activities such as mowing the lawn, snow-blowing the driveway, and chopping wood. The applicant asserts that he does not have sufficient strength (in his right hand) to pull the cord on the lawnmower or snow blower and these activities also aggravate his low back pain.

c) He is no longer able to work on classic cars as he cannot use tools such as a wrench because of his right-hand swelling, pain, and weakness. As a result, he ended up selling the car that he was in the process of refurbishing when the accident happened.

d) He stopped regularly attending Church and could no longer run bible study groups because hosting it in his home was too much work.

e) He can no longer camp, go cycling or play baseball with his grandkids. Due to post-concussive symptoms, he is now irritated by the noise of family gatherings.

12The applicant testified that at the year and a half mark he started to modify some of his activities and started to do more activities but with pain. However, even now at the four-year mark his wrist and dexterity in his hands prevents him from doing most activities in the same way that he could pre-accident. I believe the applicant as I find him to be a very credible witness. His testimony was also consistent with his self-reports to both parties’ assessors, Dr. Yardley, his treating orthopaedic surgeon and Dr. Auguste, orthopaedic IE assessor. Dr. Auguste agreed during cross-examination that she found both the applicant and his wife to be very credible people. There was no reason to believe that he was exaggerating or feigning his symptoms or over reporting his functional limitations.

13I find that after comparing the applicant’s pre- and post-accident activities that he has a complete inability to carry on a normal life as a result of his accident-related impairment during the relevant time period. As a starting point, I find that the applicant was significantly limited in the first year and a half post-accident as he could not do basic things such as shake hands with people, turn doorknobs and button up his shirt. Further, I find he could not do substantially all of his pre-accident activities as I accept that he could no longer take care of the indoor/outdoor maintenance of his home, be active in his Church or be an involved father and grandfather the same way he did pre-accident. I also accept that he was unable to enjoy many of the leisure activities he enjoyed pre-accident.

14The analysis criteria outlined in Heath supports that in completing the NEB analysis special attention should be given to activities that are more meaningful to a person. In this case, one of the applicant’s favourite past times was fixing up classic cars and working with his hands. I find the applicant’s evidence supports that in the two years following the accident, he has been unable to continue with this hobby which he found joy in pre-accident. As a result, he had to sell the car he was working on.

15I also find the medical evidence supports that the applicant suffered an ongoing impairment in the two-years post-accident which resulted in a complete inability to carry on a normal life. First, the OCF-3 completed by Dr. Rodrigues, family doctor one-month post-accident supports that he meets the disability threshold for entitlement to the benefit. Second, I find the report of Dr. Yardley and the clinical notes and records of Eramosa corroborate that the applicant had an ongoing impairment and meets the disability test.

16I prefer the report of Dr. Yardley over Dr. Auguste as the doctor saw the applicant over eight times in the year following the accident. At each visit, the applicant complained about pain, swelling, weakness and stiffness in the right hand which resulted in various functional limitations such as shaking hands with people and turning doorknobs. Dr. Yardley’s report also highlighted that the applicant suffered from ongoing neck and low back pain which affected his ability to function. Much was made by the respondent about the fact that Dr. Yardley does not provide an opinion that the applicant meets the legal test for entitlement to a NEB. It is well-settled law that it is not up to a medical practitioner or expert to determine whether an individual meets a legal test. Instead, this is the job of the Tribunal and the courts. I find Dr. Yardley’s report provides a detailed overview of the applicant’s pre- and post-accident activities and the doctor also provides an opinion that the applicant has been unable to carry out the majority of his pre-accident activities as a result of his impairment. Dr. Yardley also conducted a physical examination that revealed that although it had been over a year since the accident the applicant’s right hand was still swollen and he had significant loss of range of motion.

17I find Dr. Yardley’s report is corroborated by the CNRs of Eramosa which support that the applicant continued to have significant right-hand pain and functional limitations up until January 2, 2020. These CNRs note that the applicant had pain and stiffness and limited tolerance to activities due to right wrist pain.

18Finally, I agree with the applicant that Dr. Auguste’s IE report is of limited value because it was completed 23 months post-accident, which is almost at the end of the time period to qualify for the NEB under the Schedule. While the applicant still reported limitations at the time of Dr. Auguste’s assessment, I agree with him that he had likely made some improvements by that time. Furthermore, Dr. Auguste’s report supports that the applicant’s right hand/wrist was still swollen despite the passage of almost two years. Dr. Auguste testified that the applicant’s fracture would have healed within 6 to 12 weeks. Further, when she saw the applicant there was no sign of impairment.

19As already noted, I assign Dr. Auguste’s report less weight due to the timing of her assessment. In addition, I find that in assessing whether the applicant qualified for the NEB Dr. Auguste’s conclusion lacked analysis. For example, she concluded that the applicant did not meet the NEB test because he is driving, shopping, performing personal care, engaging with family, attending appointments, and performing some home maintenance tasks. In my view, a lot of the applicant’s pre-accident activities were overlooked by Dr. Auguste and no attention was given to the quality in which he performs any of these activities or what activities were most meaningful to him.

20The respondent submitted the Court of Appeal decision in Moore v. Getahun et al.³ and this Tribunal’s decision in S.B.S. v. Wawanesa⁴ in support of its position that I should accord less weight to Dr. Yardley’s opinion over Dr. Auguste’s because as a treating practitioner Dr. Yardley is an advocate. I do not find these decisions helpful to the respondent’s argument. The fact that Dr. Yardley is the applicant’s treating orthopaedic surgeon does not automatically make the doctor an advocate. The respondent failed to point out anything in Dr. Yardley’s report which supports that the doctor lacked neutrality. Further, it is within my discretion to accept and reject any evidence that I deem relevant. I find that as the applicant’s treating orthopaedic surgeon, Dr. Yardley had seen and assessed the applicant on several occasions prior to issuing the report and the applicant’s complaints were consistent throughout. I find that in this case, Dr. Yardley is in a better position to give an opinion on the applicant’s impairment as the doctor has been treating him over time and within the time period in which the applicant qualified for the NEB.

21For all of the above-reasons, I find that the applicant has established on a balance of probabilities that he suffers a complete inability to carry on a normal life from March 14, 2018, to February 15, 2020, as a result of his accident-related impairments and is entitled to payment of the NEB.

INTEREST

22The applicant is entitled to payment of interest on overdue payments of NEBs.

23Section 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

24For all of the above-noted reasons I find 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. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.
3. 3Moore v. Getahun et al. 2015 ONCA 55
4. 4S.B.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 51274 (ON LAT)