Licence Appeal Tribunal File Number: 22-006779/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:
Natella Vekselshtein
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Stefan Sistilli-Sguazzin, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Natella Vekselshtein (the “applicant”) was involved in an automobile accident on November 5, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 21, 2019, to November 5, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. the applicant is not entitled to NEB, and no interest is payable.
ii. The application is dismissed.
ANALYSIS
The applicant is not entitled to NEBs
4I find that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life.
5Section 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. Economical Mut. Ins. Co., 2009 ONCA 391 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.
6To further summarize paragraph 50 of Heath, the following are factors to consider when analyzing the test for NEB:
a. A comparison between the applicant’s activities and life circumstances before and after the accident.
b. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.
c. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.
d. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.
e. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.
f. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities.
7The applicant submits that she sustained severe physical and psychological injuries from the accident, which include: neck pain, shoulder pain, back pain, arm pain, knee pain, a provisional diagnosis of cervical radiculopathy, multiple partial tears in the left knee, full thickness tear in the right knee, partial rapture of the complex Baker’s cyst in the right knee, major depressive disorder and somatic symptom disorder, chronic pain and post traumatic fibromyalgia. She further argues that her injuries continuously prevent her from engaging in substantially all of her activities in which she was ordinarily engaged in before the accident.
8To this end, she relies upon the clinical notes and records (“CNRs”) of Dr. Ruth Grossman, her family physician, a s. 25 psychological assessment report, completed by Dr. Eugene W. Hewchuk, psychologist, dated September 17, 2020, a s. 25 chronic pain assessment by Dr. Michael Gofeld, pain specialist, dated September 2, 2021, and Disability Certificates ("OCF-3"), completed by Dr. Vincenzo DeLuca, chiropractor dated November 21, 2019, and Farhankhan Pathan, physiotherapist, dated May 16, 2020.
9The respondent argues that the applicant had significant pre-existing knee pain. It further argues that not only did the applicant return to work, but she also increased her hours, as she now works full time. The respondent further submits that the applicant has self-reported that she is independent with her activities of daily living and continued to do her housekeeping tasks, although she required assistance from her daughters sometimes. Thus, it argues that the applicant has failed to prove that she is entitled to NEBs. It relies upon the s. 44 reports of Dr. Amena Syed, psychologist, and Dr. Yong-Kyong Michael Ko, physiatrist.
10I find that the applicant has not led sufficient evidence to support that she suffers a complete inability to carry on a normal life.
11In order for an insured person to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must first identify the activities in which she used to engage, along with their frequency, time commitments, and importance, which was not done here. In the absence of this information, it is difficult to compare her pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
12Instead of providing this information, the applicant vaguely submits that she relies upon the medical evidence she summarized in her submissions, to provide particulars of her pre-accident and post-accident activities. It is unclear from the applicant’s submissions, which medical evidence she is relying upon to support this submission. However, once again the applicant has failed to identify all her pre-accident activities, and which activities she valued most, as required by Heath.
13Some of the applicant’s pre-accident activities are identified in the reports of Drs. Gofeld and Hewchuk. For instance, the applicant self-reported to Dr. Gofeld that prior to the accident, she was employed as a full time practical nurse, completed personal care tasks such as: showering, brushing her teeth, getting dressed, putting on shoes, walking inside the house, getting in/out of a bed/chair, and eating. The applicant also reported the following pre-accident housekeeping tasks: laundry, vacuuming, mopping, sweeping, cooking, caring for her children, taking out the garbage, shovelling the snow and grocery shopping. Critically there are little additional details of the applicant’s pre-accident activities, such as the time spent engaging in them, the frequency in which she engages in those activities, and which activities she valued most. Nor, have all the applicant’s pre-accident activities been identified.
14Similarly, the applicant reported to Dr. Hewchuk that “driving is a daily requirement for her to do her work”. However, once again, I have not been provided with particulars of how often and the time commitments prior to the accident. Nor, has the applicant advised whether driving was the most valued pre-accident activity. The applicant also vaguely advised Dr. Hewchuk that she completed various activities and games with her daughters, but once again, there is no particulars of what activities, how often, or the time commitments prior to the accident.
15The evidence shows that the applicant not only returned to work following the accident, but she switched to a full time position, and is working extra hours. Indeed, the applicant has self-reported to Drs. Gofeld, Ko and Syed that she has returned to work following the accident. I acknowledge the applicant relies on her self-reporting to Dr. Hewchuk that she struggles with her work on a daily basis, however she did not provide particulars of which tasks she struggled with. Moreover, she reported to Drs. Gofeld, Syed, and Ko that she was currently working at her pre-accident capacity and had transitioned to full time work along with extra work hours if available. The employment file also shows that the applicant was working 74 hours from February 24, 2020 to March 8, 2020. Working in a full time position, and extra hours to support oneself and their family, as the applicant does, is commendable however, in my view, it demonstrates that the applicant does not suffer a complete inability to live a normal life.
16I am alive to the applicant’s reliance on Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, that the Schedule requires that an applicant show an inability to engage in “substantially all” (not “all”) of her pre-accident activities to qualify for a non-earner benefit.
17However, the court also noted at paragraphs 43 and 44, that:
“Although I consider it unlikely that persons who can work at their pre-accident jobs following an accident will often meet the disability standard for non-earner benefits, I do not rule out such a possibility.
For example, in jobs where mobility is not a requirement (e.g., department store greeter, telemarketer, etc.) and the job was not of great importance in the claimant's pre-accident life, it may be possible for a claimant who returns to his or her pre-accident employment following an accident to satisfy the test for non-earner benefits.”
18Here, the applicant has consistently self-reported to all s. 25 and 44 assessors that her pre-accident employment was physical and included: heavy lifting, prolonged standing, and frequent reaching above the shoulders. Moreover, as noted above, the applicant has failed to identify which pre-accident activities were most important to her. However, I note that Dr. Hewchuk in his report wrote that “Of greater importance is the fact that pain has severely restricted her working activities with the special needs children assigned to her.” In my opinion, this appears to indicate that the applicant’s employment is one of the activities she values most, as Dr. Hewchuk noted that it was of greater importance, when noting her post-accident limitations. As such, unlike in Galdamez, the applicant has returned to her pre-accident employment which is not only physical in nature but also of great importance to her.
19A reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. I acknowledge that the applicant self-reported to Dr. Gofeld that she was experiencing difficulties with: brushing her hair, upper body dressing, walking, and getting in/out of the bed or a chair. However, a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The test for entitlement to NEBs is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of her pre-accident activities.
20Significantly, when Dr. Gofeld was asked whether the applicant’s chronic pain resulted in a substantial inability to perform her personal care tasks, he opined that more time and effort was necessary. In my interpretation, Dr. Gofeld has concluded that more time and effort from the applicant was required, which demonstrates that the applicant does not have a complete inability to complete her personal care tasks.
21I also find Dr. Gofeld’s report to be inconsistent on the applicant’s functionality for her post-accident housekeeping tasks. For example, at one point in the report, Dr. Gofeld noted that the applicant was unable to keep up with her household routine and all her household chores are completed by her children. Meanwhile, in another portion of the report, Dr. Gofeld noted that the applicant is limited in most of her housekeeping tasks. Further, the applicant did not advise Drs. Ko or Syed, that she was unable to complete her housekeeping tasks following the accident, as she did not mention it. As such, I place little weight on the self-reporting contained in Dr. Gofeld’s report with respect to the applicant’s limitations with her housekeeping tasks.
22I also acknowledge that the applicant self reported to Dr. Hewchuk that she was unable to “do many physical things” like daily essential home maintenance, and various activities with her daughters, including playing games with them, however I find this to be vague. Furthermore, neither the evidence nor the applicant’s submissions provide an explanation on why she is unable to do these activities, albeit she reported that she was unable to play card games because of her lower back pain. However, where pain is the primary factor preventing an applicant from engaging in pre-accident activities, Heath requires the applicant to show that the pain practically prevents them from engaging in those activities. The applicant provided no submissions on how her pain practically prevents her from engaging in these activities.
23I place little weight on the OCF-3s. Although the OCF-3s identify that the applicant suffers a complete inability to live a normal life, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident.
24Finally, none of the doctors have linked the applicant’s ongoing knee issues to the subject accident. I acknowledge that the applicant relies on a number of CNRs entries from Dr. Grossman’s records which support that she has an ongoing impairment in both knees, affects her mobility, work, and activity modification has been recommended by Dr. Chris Lindsay, orthopaedic specialist. However, I am not persuaded that the applicant’s ongoing issues with her knees are related to the accident.
25Dr. Grossman has not linked the applicant’s ongoing knee impairments to the accident. Instead, his entries dated July 7, 2020 and September 29, 2020, indicate that there was a prior injury to both knees, and that the MRI of the right knee revealed degenerative changes. However, there is no reference to the accident, or how the accident contributed to these issues.
26Subsequently, Dr. Grossman referred the applicant to Dr. Lindsay and Dr. Marian Sidor, rheumatologist, both of whom did not provide an opinion of whether this accident was linked to the applicant’s ongoing knee impairment. Notably, while the applicant reported to Dr. Lindsay that she felt the accident may have provoked her knee pain, Dr. Lindsay did not provide an opinion with respect to this. Instead, Dr. Lindsay recommended weight loss. Dr. Sidor also opined that the applicant had mild osteoarthritis in her knees and that it was possible she may have a mild form of central pain syndrome, however it was premature to conclude this. Nevertheless, Dr. Sidor did not provide an opinion linking these impairments to the subject accident.
27In a similar vein, Dr. Gofeld, also did not link the applicant’s ongoing knee impairments to the accident. I acknowledge the applicant submits that Dr. Gofeld has linked her ongoing knee impairments to this accident, however I disagree. Dr. Gofeld opined that his diagnosis of chronic pain syndrome, shoulder and back pain were a direct result of the accident. However, the same could not be said for the applicant’s knee pain.
28Particularly, Dr. Gofeld opined that the applicant’s knee pain was attributed to traumatic Baker’s cyst rupture and osteochondral injury (right knee), and a tear of the ACL and the medial gastrocnemius (left knee). However, he also concluded that these injuries were likely predisposed by pre-existing asymptomatic degenerative changes of the knee joints. Significantly, Dr. Gofeld opined that an orthopaedic specialist may provide a specific opinion regarding the link between these injuries and the accident. As noted above, Dr. Lindsay, an orthopaedic specialist has not provided an opinion of the link between the accident and the impairment. Thus, the applicant has not met her burden to prove that her ongoing knee impairments and the resulting impact on her daily activities, is as a result of this accident.
29For all these reasons, I find that the applicant has not established that she is entitled to NEBs.
Interest is not payable
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
31As no benefits are overdue, no interest is payable under s. 51.
ORDER
32For the reasons outlined above, I find that:
i. the applicant is not entitled to NEBs, and no interest is payable.
ii. The application is dismissed.
Released: October 15, 2024
__________________________
Tanjoyt Deol
Adjudicator