Lee v. Aviva General Insurance, 2022 CanLII 30656

Citation: Lee v. Aviva General Insurance, 2022 ONLAT 20-013196/AABS

Licence Appeal Tribunal File Number: 20-013196/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:

Jae Jin Lee

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Applicant:

Jae Jin Lee, Applicant

Julia Zhiyuan Hou, Counsel

For the Respondent:

Laura C. Meschino, Counsel

HEARD: In Writing

Heard by way of written submissions

OVERVIEW

1The 49-year-old applicant, Jae Jin Lee, was injured in a motor vehicle accident on December 11, 2017. The applicant claims that as a result of the accident, he sustained physical injuries and continues to suffer a complete inability to carry on a normal life as a result of the accident. The respondent, Aviva Insurance Company of Canada, paid the applicant Non-Earner Benefits (“NEBs”) for a period of time until December 3, 2018, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (including amendments effective June 1, 2016) (the “Schedule”).

2Thereafter the Respondent denied the claim for NEBs on the basis that the applicant does not suffer from a complete inability to carry on a normal life as required by the Schedule. The Applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

3The period in dispute is about twenty-one weeks, from December 4, 2018 to April 30, 2019.

ISSUES IN DISPUTE

4The following are the issues to be decided, as per the Case Conference Order dated April 28, 2021:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 4, 2018 to April 30, 2019?

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

RESULT

5I find the applicant is not entitled to NEBs for the period in dispute as he has not demonstrated that he has a complete inability to carry on a normal life as a result of the accident. No interest is owing.

ANALYSIS

Entitlement to Non-Earner Benefits

6In order to receive NEBs, the applicant must prove that he suffers a complete inability to carry on a normal life as a result of the accident.² A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.³ On the evidence, I find that the applicant had not met his burden and is not entitled to NEBs for the period in dispute.

7The parties agree that the leading case is Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which requires an assessment of the applicant’s pre-accident activities and life circumstances over a reasonable period of time prior to the accident.⁴ The evidence concerning the applicant’s pre-accident activities and how his impairments as a result of the accident have led to a complete inability to carry on with them post-accident was, in my view, unpersuasive.

8The applicant asserts that pre-accident he was independent with his activities of daily living, was active in the church community, and participated in housekeeping and home maintenance activities, including carrying and folding laundry, assisting with grocery shopping, garbage removal, lawn care and light snow removal. He submits that he owned a convenience store which he sold in November 2017 and per an agreement with the new owner, he has been working in the store 3-4 days per week to assist with customer service, cashier services, stocking shelves, ordering inventory and performing the book-keeping. He submits that he was working at the time of the accident. He submits that he stopped after the accident and returned to work in April 2019.

9He submits that as a result of the accident he has sustained the following injuries: chronic myofascial strain to the cervical spine, lumbar spine and both shoulder girdles; exacerbation of pre-existing age-related facet osteoarthritis of the lumbar spine; painful rotator cuff dysfunction of the right shoulder; exacerbation of pre-existing avascular necrosis of both hips; and chronic pain.

10The Disability Certificate (OCF-3), dated March 5, 2018, notes the applicant was diagnosed with whiplash-associated disorder type 2; dislocation, sprain and strain of joints and ligaments of the thorax, shoulder girdle, lumbar spine, pelvis and knee; and low back pain. The OCF-3 notes the applicant suffered a complete inability to carry on a normal life and a substantial inability to perform the housekeeping and home maintenance services that he normally performed prior to the accident. The expected duration of the impairment would be 9 to 12 weeks. I note that this would appear to be a period ending in or about June 2018, a date prior to when the respondent stopped paying the NEBs on December 3, 2018.

11It is not disputed, and the applicant acknowledges in his submissions, that his pre-accident medical history is significant for amyloidosis (protein building up in the organs) and avascular necrosis in the hips, and hip and back pain. Prior to the accident, to address the applicant’s pain symptoms in his hips and low back, he received injections to his back in March and April 2017 and was offered hip replacement surgery. He was also diagnosed with degenerative disc disease in the spine. The applicant asserts he did not have any pre-existing neck or right shoulder pain complaints. I note that his medical condition was serious enough for him to sell his convenience store about one month prior to the accident.

12However, the applicant purports that his condition was stable prior to the accident and he was independent with his activities of daily living, and that his condition was exacerbated by the accident. The applicant submits that his accident-related pain, primarily his neck, low back, right shoulder and hip impedes his day-to-day living. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.⁵

13Based upon the evidence presented with regards to his daily activities, I find that he does suffer from some pain, as evidenced in the section 25 orthopedic report of Dr. Franco Tavazzani, orthopedic surgeon, dated October 25, 2018, which states that, at the time of assessment, the applicant noted he would develop back pain if he performed some repetitive or particularly heavy bending, lifting, carrying or twisting. But the pain did not interfere with his ability to perform normal activities of daily living or occupational activities. Further, the episodes of low back pain were intermittent and would quickly resolve with rest and lying supine. Dr. Tavazzani further notes that the applicant is also experiencing persistent pain in both of his hips, particularly on the left hip after the accident. The applicant reports using a cane when leaving his home for long outings but does not require a cane while inside his home. His hip pain is exacerbated with standing or walking for 60 minutes or more, and he manages his hip pain with lying supine and taking plain Tylenol. Dr. Tavazzani notes the applicant complains of neck pain throughout the midline of the cervical spine. The pain is not constant but frequently radiates into the head causing headaches. He manages the pain with massage, heat, lying supine, stretching and taking plain Tylenol. He also experiences right shoulder pain which is activity associated and is present when performing any heavy or repetitive lifting or lifting away from the body or reaching above the shoulder level.

14I note that while the list of symptoms is helpful, in order to find that the applicant is entitled to a NEB, I require evidence of his life before the accident as a baseline so that I can compare it to his life post-accident. What is lacking from the applicant’s submissions and evidence is a thorough analysis with respect to the activities the applicant could engage in prior the accident in comparison to what he can do post-accident. I think it is evident that the applicant experiences pain, however, I find based upon the evidence presented that his pain does not practically prevent him from the majority of his independent self-care tasks or engagement in his daily activities.

15I note the Heath test provides that the applicant may identify their “valued” activities of daily living and submit how, as a result of the accident, their most valued activities have fundamentally changed, thus resulting in a complete inability to carry on a normal life. Activities identified by an applicant as being highly valued attract more weight. The applicant’s most valued activities were laid out in his submissions, specifically, self-care and hygiene, walking, working at the convenience store, participating in church events, housekeeping and outdoor maintenance. While I found this exploration of the applicant’s valued activities to be helpful for context, I did not find that the particulars of his valued activities were sufficiently detailed in proving that he has a complete inability to carry on a normal life or, as mentioned above, that the pain he has as a result of the accident practically prevents him from engaging in these activities.

16With regards to self-care and hygiene, I note the evidence suggests that pre-accident the applicant was not entirely independent given his low back and hip pain. In a clinical note of Dr. Kevin Cho, dated December 10, 2016, the applicant noted he found it difficult to dress himself in the mornings due to his hip pain. With regards to post-accident, the section 44 orthopaedic assessment of Dr. Barry Cayen, orthopaedic surgeon, dated October 24, 2018, states the applicant’s post-accident pain symptoms imposed some restrictions, at times, on his ability to do certain self-care tasks such as toenail care or putting on his coat. Based upon post-accident medical evidence, it would appear that the applicant continues to require assistance to complete some activities that involve bending such as putting on socks and performing nail care. However, the occupational therapy-in home assessment report of Robert Campos, occupational therapist, dated October 16, 2018, notes that the applicant can manage all of his other self-care tasks such as dressing and tub transfers. I find the applicant’s evidence is lacking in detail and does not analyse sufficiently the self-care tasks he could do pre-accident when compared to post-accident. As a result, I am not convinced by the evidence presented that the applicant was, during the period of time in question, practically prevented from engaging in self-care and hygiene tasks at his pre-accident level.

17With respect to walking, I note the applicant’s significant medical history of hip and low back pain prior to the accident. In his report, Dr. Tavazzani noted that as of July 14, 2017, the applicant was using a cane, was being assessed for a hip replacement and that by September 8, 2017, the applicant was still experiencing ongoing pain in his hips. Dr. Tavazzani confirms that pre-accident the applicant was using a cane when leaving his home for long outings. The applicant had been diagnosed with avascular necrosis as well as left thigh weakness and diffuse bony lesions. Dr. Tavazzani notes that the applicant’s limp had become significant and he had developed weakness in his left lower extremity. The medical evidence shows that the applicant was experiencing notable difficulty with his walking pre-accident and was advised that 100% pain control was not possible but with cortisone injections his pain could be brought down to a manageable level. After receiving the steroid block, he was still relying on a cane at times and being assessed for a hip replacement. I find the pre-accident medical records consistently demonstrate the applicant was experiencing pain, particularly hip pain, and was using a cane, at times, to assist him, and had functional limitations. I find the applicant did not provide sufficient details, evidence or analysis to demonstrate that his already reduced walking ability was further diminished as a result of the accident. I do not find the evidence compelling in establishing that the applicant sustained an impairment that continuously prevents him from walking at his pre-accident levels.

18With regards to working in the convenience store, I note that the applicant sold his store about a month prior to the accident. Dr. Tavazzani notes the applicant he did not feel he could continue to keep up with the demands of his convenience store given his health problems. The evidence demonstrates that his ongoing hip and back pain interfered with his work enough for him to sell the store. However, the applicant states that he was continuing to work at the store 3 to 4 days a week to assist the new owner on an indefinite basis. I find the evidence inconsistent with regards to whether he was working at the time of the accident. I note the Application for Accident Benefits (OCF-1), dated January 8, 2018, and the Disability Certificate (OCF-3), dated March 5, 2018, both state the applicant was unemployed. He also received NEBs for a period of time after the accident until December 3, 2018. Further, the clinical notes and records of his treating physician Dr. Silverman, dated May 3, 2017, and September 8, 2017, state the applicant is not working because of his ongoing left hip pain. There are inconsistencies in the evidence and I am not convinced, on a balance of probabilities, that the evidence presented establishes that the applicant was working at the time of the accident.

19The applicant’s fourth valued activity was participating in church activities. By all accounts, the applicant regularly attended church prior to the accident. As noted in Dr. Tavazzani’s report the applicant states that post-accident, he avoided going to church as frequently as he did prior to the accident as he cannot sit or kneel for long periods of time and the pain distracts him from his prayers. This in inconsistent with the applicant’s self-reporting noted in the occupational therapy–in home assessment report which states that pre-accident he attended church once a week and post-accident he attends once per week. I do not find that his impairments continuously prevent him from engaging in this activity or that his pain practically prevents him from same.

20Last, with regards to housekeeping and outdoor maintenance, the applicant submits that pre-accident he was able to perform housekeeping and home maintenance activities for which he was responsible. However, post-accident, as noted in the report of Dr. Tavazzani, the applicant is unable to perform activities that involve prolonged standing, walking, bending, lifting, reaching, pushing or pulling. He can, however, prepare small meals, perform light cleaning and perform all other housekeeping activities at a reduced capacity and with the assistance of his family. The applicant further submits that he is unable to perform his home maintenance activities such as raking the leaves or mowing the lawn.

21I note Dr. Cayen states that this is reasonable given the applicant’s pre-existing avascular necrosis in his left hip and the fact that he needs a cane for ambulation. Dr. Cayen does acknowledge that the applicant has a minor level of impaired function due to the accident and increased difficulty cleaning secondary to right shoulder pain. The occupational therapy–in home assessment report states that prior to the accident, the applicant’s wife did the majority of the housekeeping tasks and was responsible for laundry and cooking. He helped with grocery shopping, cleaning, vacuuming and was mostly responsible for outdoor yard work. At present, his wife and children help more often with housekeeping chores and outdoor yard work due to back, hip, neck and right shoulder pain. I find that these tasks may have been impacted by the accident. However, I do not find that his impairments continuously prevent him from engaging in this activity or that his pain practically prevents him from same.

22Based upon the totality of the evidence presented, I do not find the applicant’s impairments as a result of the accident have led to a complete inability to carry on a normal life. I find that the applicant has not established that he has been continuously prevented from engaging in substantially all of the activities in which he engaged in before the accident.

23For these reasons, I find the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident and is therefore not entitled to NEBs for the period in dispute.

CONCLUSION

24For these reasons, the application is denied in its entirety.

Footnotes

1. 1O. Reg. 34/10.
2. 2The factors that inform the determination of NEB entitlement are outlined in paragraph 50 of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 [“Heath”].
3. 3O. Reg. 34/10, at s. 3(7)(a).
4. 4Ibid.
5. 5Heath, supra note 2 at para 50.