Licence Appeal Tribunal File Number: 19-007830/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:
Shairoon Singh
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Bhoj Singh, Estate Trustee of the Estate of Shairoon Singh, Applicant
Ranjit Verraich, Counsel
For the Respondent:
Modupe Egunjobi, Counsel
HEARD: In Writing
December 22, 2021
BACKGROUND
1The applicant in this case is the Estate of Shairoon Singh (“Estate”). Ms. Singh was diagnosed with breast cancer in 2012. The cancer reoccurred in 2013 and again in 2016 and by which time it had metastasized. She also suffered from kidney failure requiring dialysis three times per week and she had other significant medical issues including heart problems. She passed-away on October 10, 2018, according to her treating palliative care oncologist, Dr. Martin Chasen, “as a result of progressive breast cancer.” He goes on to say, “The progressive breast cancer and the chronic renal failure determined this patient's over [sic – overall?] health and life expectancy.”
2Ms. Singh was involved in an automobile accident on July 28, 2017. She sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Both parties agree in their submissions that the only issues left in dispute is her entitlement to a non-earner benefit from four weeks post-accident to the date of her death and interest.
3The respondent, Unica Insurance Inc. (“Unica”), submits that the Estate’s claim for a non-earner benefit fails on two grounds. The first ground is that the impairments she suffered after the accident were caused by her underlying medical condition and not by the accident. The second ground is that the onus is on the Estate to show how her life was fundamentally changed by the accident to meet the complete inability test for entitlement to a non-earner benefit, and it has failed to do so.
4I find that the Estate has failed to meet its onus to satisfy the test for a non-earner benefit on both grounds asserted by Unica. Ms. Singh’s progressive terminal cancer rendered her increasingly in need of assistance and was responsible for her declining ability to lead a normal life. Ms. Singh suffered from extensive pre-accident limitations and her prognosis was poor. Her condition was not materially worsened by the accident. There is also insufficient evidence to support a claim of a fundamental change in lifestyle as a result of the accident.
ISSUES
5The issues in dispute in this hearing are as follows:
a. Is the Applicant entitled to a non-earner benefit (“NEB”) for the period of from August 25, 2017 to October 10, 2018?
b. Is the Applicant entitled to interest on any overdue payments of benefits?
6The case conference report defining the issues in dispute is silent on the question of costs. The Estate has added a claim for “costs and disbursements” in its submissions. I note that Rule 19.2 of Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) states: “A request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.” As a result of Rule 19.2 the Estate has brought its request for costs in a timely manner and I will consider it.
CAUSATION
7The onus is on the Estate to establish that any claim for a non-earner benefit arose as a result of the accident. I find Dr. Chasen’s report conclusive in establishing that Ms. Singh’s impairments were not caused by the accident. Dr. Chasen took over the treatment of Ms. Singh’s cancer in March 2016. In his review of that treatment, Dr. Chasen mentions the motor vehicle accident only in the several months post-accident. Thereafter he makes no further mention of it. His comment is limited to a note that she had a depressed affect and was experiencing whole body pain after the accident. Also, after the accident, Dr. Chasen notes that a lesion that had previously been responding to chemotherapy had begun to grow again. He does not tie the post-accident health deterioration to the accident or modify his concluding opinion that progressive cancer and chronic renal failure are responsible for Ms. Singh’s health and life expectancy.
THE TEST FOR A NON-EARNER bENEFIT
8The applicable section of the Schedule with respect to entitlement to a non-earner benefit is set out in s. 12(1) as follows:
12.(1) 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:
- 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.
9The term “complete inability to carry on a normal life” is expanded in s. 3(7) of the Schedule: “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.”
10The test for entitlement to a non-earner benefit asks me to consider three things: did Ms. Singh suffer an impairment as a result of the accident; and, if so, did that impairment prevent her from engaging in substantially all of her ordinary pre-accident activities; and, if so, was she continuously prevented from doing so?
11Further guidance in the interpretation of the entitlement test is provided by the Ontario Court of Appeal in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). At paragraph [50] the Court set out factors to be considered:
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.
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.
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.
Was there evidence led in this case that was capable of satisfying the test?
12When other evidence is taken into account, particularly the metastasis causing bones to break and lesions in bones of the pelvic area making ambulation difficult and painful, it is clear that Dr. Chasen is right on point about the impact of the progressive cancer on Ms. Singh’s health. It is her deteriorating health from cancer that reduces Ms. Singh’s ability to function, not the soft-tissue injuries suffered in the accident.
13Having made the determination on causation, it is hard to separate that determination from the analysis on whether Ms. Singh suffered a complete in ability to live a normal life. The Estate advances several pieces of evidence in support of its submission that Ms. Singh’s post-accident life was markedly different from her pre-accident life. It argues that Amna Bajwa, a physiotherapist, submitted a Disability Certificate (“OCF-3”) dated August 27, 2017 indicating that Ms. Singh was incapable of living a normal life for “9 -12 weeks.” In advancing this submission, the Estate ignores an OCF-3 from Dr. Kale, Ms. Singh’s family doctor, that reaches the opposite conclusion less than three weeks later, not even including this OCF-3 in its exhibit book. In submissions the Estate asks me to ignore Dr. Kale’s OCF-3.
14The Estate relies on an unsworn statement from Ms. Singh dated August 17, 2017. In that statement, Ms. Singh purported to describe her pre- and post-accident activities in support of her claim. In that statement, Ms. Singh identifies the following post-accident impairments:
I have headaches; I have neck pain on both sides, into the shoulders and down the back to my two hips. I have pain in the shin bones of both legs. I also have pain in both of my ankles. Those are all of the injuries I received from the accident.
I can not [sic] look after my own personal care because I do not have the energy. Before the accident I did have the energy to do my personal care.
I need assistance to get dressed, undressed, my husband helps me take a shower, I wear slip on sandals. I am held to get onto the toilet. My husband washes my hair for me. Before the accident I did all of the activities for myself. The only thing I could not do before the accident was washing my hair as I can not [sic] get the dialysis connection tube wet.
Before the accident I did a bit of tidying up. I would push a sweeper to pick up the dust. I cooked. I can not cook or clean now. On an average day before the accident I spent about one hour to cook and about 15 minutes to clean. My husband is now doing all that work.
I used to accompany my husband with the grocery shopping, but I can’t [sic] now. It is just too tiring for me.
15On a final note, Ms. Singh notes that she “will be seeing Dr. Kale in early September 7th.” At that September 7 visit, Dr. Kale noted, “fu pain from recent MVA: pain well-controlled with lyrica cont same” The next note in Dr. Kale’s records addresses preparation of the OCF-3 on September 13, 2017. In answer to the question “Does the applicant suffer a complete inability to carry on a normal life? (I.e., Has the applicant sustained an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident?),” Dr. Kale answered “No.” Given that Dr. Kale was Ms. Singh’s treating family physician with full knowledge her medical history and the impact of her metastasized breast cancer and renal failure, I attach considerable weight to Dr. Kale’s contemporaneous opinion.
16With the pain “well-controlled with lyrica” Ms. Singhis left with an inability to perform her usual activities is tiredness. She does not say that she cannot do the activities she lists; it is just that she is too tired to do them. Given the test for a non-earner benefit is a continuous inability to perform substantially all of the pre-accident activities, this admission is significant. There is no medical evidence that ties her tiredness to the effects of the injuries she sustained in the accident.
17Finally, the Estate relies on the attendant care assessments of an occupational therapist, Ms. E. Korman and a physiatrist, Dr. R. Williams, retained by Unica to examine Ms. Singh. Ms. Korman assessed Mr. Singh on May 30, 2018 and, not surprisingly, given Ms. Singh’s progressive metastatic cancer, finds that Ms. Singh needed attendant care. The Estate places heavy reliance on the condition in which Ms. Korman found Ms. Singh, arguing that it is proof that she could not live a normal life. Ms. Singh was bedridden and unable to complete many of the assessment tasks.
18Ms. Korman’s report must be approached with a large measure of circumspection. It must be noted that Ms. Korman was asked to assess Ms. Singh’s condition as she presented in late May 2018 with respect to her need for attendant care. She was not asked which of Ms. Singh’s needs arose from her underlying medical condition and which arose from her accident-related injuries. Her assessment is a snapshot. I do not assign it much weight in assessing whether Ms. Singh’s meets the test for a non-earner benefit.
19Similarly, the report of Dr. R. Williams notes that Ms. Singh was bedridden and in significant pain. As with Ms. Korman’s assessment, Ms. Singh remained in bed for Dr. William’s assessment. Superficially, this would indicate a complete inability to lead a normal life, but Dr. Williams report must be approached with the same caveats as Ms. Korman’s report. The assessment date was September 26, 2018, 15 months post-accident and two weeks before Ms. Singh passed-away. He cancer was rampant, so it was not surprising that she was bedridden. She had pelvic and lumbar lesions from metastasis at multiple sites. As with Ms. Korman, Dr. Williams finds that Ms. Singh required attendant care but assigns that need to a “progressive decline following the MVA.” He does not state that that decline was because of the MVA.
20Dr. Williams finds only a temporal link between the accident and Ms. Singh’s condition. He states, “The only thing that can be provided from her husband and the medical documentation provided for review is that temporally the accident happened and there was a noted slow functional decline with rapid functional decline occurring in November 2017. In discussion with her husband, he ascribed that to a change in her medications to try and manage the pain that was present in July 2017 following the accident.” Dr. Williams does not endorse Ms. Singh’s husband’s statement. He merely notes that, in the condition in which he found Ms. Singh, she needed attendant care.
CONCLUSION
21Having reviewed the evidence and submissions, I conclude that Ms. Singh did not suffer a complete inability to live a normal life as a result of the accident on July 23, 2017. The “normal life” that I must consider is the life Ms. Singh was living with progressive metastatic cancer. It was a life of pain and decline in function from metastasis and was not as a result of the accident. The Estate is not entitled to a non-earner benefit for the period from 4 weeks post-accident until Ms. Singh’s death on October 10, 2018. It follows from this finding that no interest is payable.
COSTS
22The Estate seeks its costs and disbursements. Costs in proceedings before the Tribunal do not automatically follow the event. They have a punitive dimension to address unacceptable behaviour. Rule 19.1 of the Rules provides that: “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” Other than requesting costs in its submissions, the Estate has not pointed to any behaviour on the part of Unica that could be described as frivolous, vexatious or in bad faith. Accordingly, the request for costs is dismissed.
Released: January 20, 2022
D. Gregory Flude
Vice-Chair