Applicant Fails to Meet Tests for Entitlement to Benefits

March 25, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Qaderi and Aviva Canada

Date of Decision: February 7, 2018
Heard Before: Adjudicator Janette Mills

NEBs and ATTENDANT CARE: Applicant fails to make case or meet the established criteria for entitlement to benefits applied for.

Ms. Shafiqa Qaderi was injured in a car accident on September 17, 2014 and sought accident benefits from Aviva but when the parties were unable to resolve their disputes through mediation she applied for arbitration at the FSCO.

Issues:

1. Is Ms. Qaderi entitled to NEBs?
2. Is Ms. Qaderi entitled to ACBs?
3. Is Ms. Qaderi entitled to medical benefits as follows?
   1. $5,284.52 for massage, physiotherapy and a mattress submitted dated June 29, 2015
   2. $2,200.00 for a social work assessment provided dated December 8, 2014
   3. $8,066.87 for rehabilitative support worker services dated December 8, 2014
   4. $5,677.00 for occupational therapy intervention dated December 8, 2014
   5. $4,701.30 (less amounts paid) for occupational therapy treatments dated December 8, 2017
   6. $2,887.13 (less amounts paid) for physiotherapy and massage treatment dated February 2, 2015
4. Is Ms. Qaderi entitled to a Special Award because Aviva unreasonable withheld or delayed payments to Ms. Qaderi?
5. Is Ms. Qaderi entitled to interest for the overdue payment of benefits?

Result:

1. Ms. Qaderi is not entitled to NEBs
2. Ms. Qaderi is not entitled to ACBs
3. Ms. Qaderi is not entitled to the listed medical benefits.
4. Ms. Qaderi is not entitled to a Special Award because Aviva unreasonable withheld or delayed payments to Ms. Qaderi
5. Ms. Qaderi is not entitled to interests for the overdue payment of benefits

Ms. Qaderi is a 54-year-old widow living in an apartment with one of her sons, his wife and their two children.  Ms. Qaderi married when she was 14 years old, she has no formal education and limited English language skills. Ms. Qaderi has a history of depression and at the time of the accident was in receipt of ODSP.  She has been diagnosed as suffering from Major Depressive Disorder, Anxiety and PTSD.

Ms. Qaderi submits that prior to the accident she was in good physical health. She was independent in her personal care, she enjoyed social gatherings with family and friends, and she was a proud mother and grandmother. Her religion was important to her and she attended mosque regularly and volunteered at events. She travelled to Afghanistan, Pakistan and Montreal to visit family. However, since the accident she is no longer fully independent in her personal care. She is unable to enjoy social gatherings; cannot attend the mosque and her volunteer duties. She is in constant pain, which has restricted her movements and added to her depression.  As a result, she is entitled to NEBs, ACBs and the medical benefits which have been denied by Aviva.

Aviva submits that Ms. Qaderi has not met the test for NEBs. She had been receiving ODSP for two years prior to the accident and was being treated by a psychiatrist, who identified restricted activities on her part.  Furthermore, Aviva’s IE concluded that she did not meet the test of a complete inability to carry on the activities of her everyday life.  Regarding ACBs, Aviva informed Ms. Qaderi that she was entitled to up to $3,000 per month with proof of incurred expenses. Ms. Qaderi has never provided this proof. Regarding medical benefits, Aviva submits that all denials have been supported by expert opinion and that there is no merit in Ms. Qaderi’s claim for a Special Award.

Ms. Qaderi has the burden of establishing on a balance of probabilities that she is entitled to the requested benefits. The Adjudicator reviewed the evidence in light of the test for NEB as set out in law. Ms. Qaderi must show she suffers from a complete inability to carry on a normal life by comparing his or her activities of daily living before the accident to those after the accident.

The Adjudicator accepts Ms. Qaderi’s testimony that she is not fully recovered, and that she still suffers from accident related pain and that she continues to require assistance with some of her personal care needs and appointments. However, it is clear that she can participate in most of her pre-accident activities to some extent and that she does so continuously. The Adjudicator noted that religion is an extremely important part of Ms. Qaderi’s life and her ability to pray in the usual and accepted manner has had a negative impact on her. However, Ms. Qaderi is beginning to attend mosque again and while she cannot pray in the same manner as previously she is able to observe her faith and has begun to do so consistently. Ms. Qaderi’s family relationships are extremely important to her however the evidence shows she is once again attending some activities and she is participating in meal preparation.

On the whole the Adjudicator determined that while Ms. Qaderi continues to suffer from some accident related injuries, the weight of the evidence does not support a finding of a complete inability to engage in the normal activities of her daily life and she has not met the test for entitlement to NEBs.

Mrs. Qaderi argues she is entitled to ACBs. The test for ACBs is clearly established.

Aviva acknowledged that Ms. Qaderi required attendant care services, and that on December 4, 2014 Ms. Qaderi was having difficulty with most of her self-care and all her housekeeping tasks.  She was using a cane for stability in and outside the home. Her range of motion was severely restricted, she was experiencing recurrent headaches, and she was not leaving home due to a fear of falling. Her daughter in law and son were assisting her with her personal care.

It was established that Ms. Qaderi required attendant care in the amount of $7,872.82. Subsequently, at the request of Aviva, she was reassessed. Although Ms. Qaderi’s condition had improved to a degree she still required attendant care in the amount of $7,838.58. At Aviva’s request on January 19, 2015, Ms. Qaderi was assessed by an Occupational Therapist, regarding two treatment plans both dated December 8, 2014, which are in dispute. She reported that she was able to complete most of her personal care tasks independently but with difficulty. She was able to do some things, not others.

There was no proof provided of arrangements for payment being made to her son or daughter-in-law for services provided. On this basis no further ACBs are awarded.

The Adjudicator reviewed the claim for medical benefits noting that entitlement to the benefits is clearly established in the Schedule. The treatment plan must be incurred. None of treatment plans submitted by Ms. Qaderi were incurred. On this basis the application for medical benefits must fail.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.