Child struck by car fails to prove entitlement to NEBs at age 16 - LAT 17-001746 v Royal Sun Alliance Insurance (RSA), 2018 CanLII 84052 (ON LAT)

January 23, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-001746 v Royal Sun Alliance Insurance (RSA), 2018 CanLII 84052 (ON LAT)

Date:     2018-04-23
Heard Before: Adjudicator Christopher A. Ferguson

NON-EARNER BENEFITS (NEBs): applicant has onus of proving eligibility for NEBs; applicant fails to show entitlement

The applicant was a 6 year old pedestrian struck by the driver of a car at a school crossing with a crossing guard on December 26, 2003. He became eligible for non-earner benefits (NEBs) in 2013, when he reached 16 years of age and sought benefits pursuant to the SABs but subsequently applied to the LAT when the disputed benefits were denied.

RSA paid the applicant NEBs for approximately seven months in 2013. After an insurer’s examination in October of 2013, it discontinued the NEB payments.

Issues:

1. Is the applicant entitled to a non-earner benefit in the amount of $320.00 weekly from November 2, 2013 to date and ongoing?
2. Is the applicant entitled to interest on any overdue payments from RSA?

Results:

1. The applicant has not proven his entitlement to NEBs: his application is denied.
2. There are no overdue payments and therefore no interest due to the applicant in this matter.

The Adjudicator noted that Section 12 of the Schedule provides that an insurer must pay an NEB to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident. An insurer is not required to pay NEBs for any period before the insured person attains 16 years of age. The applicant turned 16 on March 24, 2013. The applicant bears the onus of proving on a balance of probabilities that his claim is valid and payable.

In determining this dispute the Adjudicator considered and applied principles for meeting the test for NEB entitlement articulated by the court in a case called Heath v. Economical Mutual Insurance which was cited by both parties. Those principles include:

1. “[…] a claimant who merely goes through the motions cannot be said to be engaging in an activity” and that “the question is not whether he can do the activity, but whether [the impairment] practically prevents engaging in activity”.
2. It is not enough to show changes from pre- to post-accident activities; the claimant must be continuously prevented from engaging in substantially all of her pre-accident activities.
3. The manner in which an activity is performed and the quality of performance post-accident must be considered. If the degree to which a claimant can perform the activity is sufficiently restricted, it cannot be said that he or she is engaging in the activity.
4. Proving disability is not sufficient to satisfy the requirements of s.12(2) of the Schedule. The applicant must establish on a balance of probabilities that his disability prevents him from engaging in substantially all of the activities in which he engaged before the accident.

The applicant provides plenty of evidence that he has required supports and accommodations to succeed at school. His evidence included academic reports for all of his school years noting that he had an Individual Education Plan (IEP), received regular indirect classroom supports, got extra help with language skills and was offered accommodations, such as extra time to complete tests. The need for accommodation persisted into college, where he enrolled in an electrical engineering technician program (EETP).  The applicant’s support and accommodation were based on ongoing advice from medical experts – neurologists, psychologists and psychiatrists – who reported cognitive deficits in processing information (speed), language functioning and organization-planning function.

RSA acknowledges the applicant’s challenges but submits that there is no evidence to support the claim that the applicant meets the test for NEBs prescribed by the Schedule and defined in Heath. RSA’s submissions set out the following arguments and evidence:

1. The applicant has made a full, or at least a substantial recovery from the accident and has demonstrated his ability to carry on a normal life by:
   1. completing elementary and secondary school and one year of college in an EETP, on time and with grades that were variable but often good and sometimes excellent;
   2. playing competitive contact sports such as rugby, football and basketball throughout adolescence – with no apparent limitation or concern about aggravating accident-related injuries;
   3. working full shifts over several months as a general laborer in building maintenance and home renovation, with a surveillance video taken July 12, 2017 showing his ability to carry out the job of painting a garage;
2. The medical evidence contradicts the claim that accident-related impairments were preventing the applicant from carrying on a normal life:
   1. Two insurer examination (IE) reports from Dr. Hetherington, neuropsychologist, dated February 10, 2017 and October 8, 2013 respectively, in which he reported:

1. No neurocognitive or neurological sequelae attributed to the injuries sustained in the accident were identified by the neurologists or neuropsychologists examining the applicant before 2013.
2. There is no evidence of major or severe traumatic brain injury.
3. Testing over several examinations by different medical experts consistently shows intact neurocognitive and neurological function.
4. A series of reports from 2013 and 2016 by a range of medical experts all confirm that the applicant was fully capable of and indeed was participating in normal activities of daily life including school and sports. The reports include test results, self-reporting by the applicant and reporting by his mother, and document reviews of earlier medical reports from 2005-2008 all of which indicated no evidence of accident-related impairments that prevented normal life activities.

RSA rebuts the applicant’s expert report by the neuropsychologist, dated June 7, 2017 by arguing:

1. The report is based on speculation on what the applicant’s inability to carry on what would likely have been his normal life (emphasis by RSA), with no explanation as to what that normal life would have entailed and no reference to any evidence – not even a question to the applicant – that would support such speculation.
2. There is no evidentiary basis for the doctor’s assertion of a “continuous limitation in [the applicant’s] learning since the accident; indeed the applicant has surpassed his own parent’s level of education.
3. The report notes a number of improvements in social, athletic and psychological areas, including resolution of post-accident anxiety and sleep problems.
4. The report notes the applicant’s cognitive functioning as being “largely preserved since the MVA” with comments about “some impairment” that are worded in an equivocal manner.
   1. The report is speculative and possibly invalid:

"I do not know how to address this issue, aside from attempting to project what his likely functioning would have been, over time since the MVA, had the MVA not occurred. Clearly, making a prediction of this nature is problematic and may well suffer from invalidity.

On this basis the Adjudicator found that the applicant has failed to meet the onus on him to show his entitlement to NEBs for the following reasons:

1. The applicant’s submissions do not illustrate any theory that his post-accident activities – school, sports, social activities -- were so constrained by his challenges as to have been “practically prevented”. Accounts and records of his academic performance and athletic activities do not support an assertion that he was continuously prevented from engaging in the activities of a normal life.
2. The applicant does not develop any argument to persuade me that the academic supports and accommodations that he was provided over the years at school, or the prompting he gets from his mother with respect to carrying out some tasks, represent or indicate a sufficient restriction on the manner and quality of his performance of pre-accident activities that would meet the qualitative test in Heath. It is, per Heath, insufficient to simply show changes in pre- and post-accident activities.
3. The parties’ arguments with respect to the applicant’s diagnoses and causation are unhelpful in this case. This is because these arguments do not deal with the principle in Heath that a claimant must address whether or not the impairments he claims actually prevent him from engaging in substantially all of his pre-accident activities of life. Proving disability, as the applicant has done, is insufficient to prove entitlement to NEBs.
4. The report by the neuropsychologist was found to be unpersuasive on the issue of NEB entitlement because – as the doctor acknowledged – his findings involved speculation about the applicant’s pre-accident potential and “what would have been a normal life.”

As the applicant has not established his entitlement to NEBs. His appeal is dismissed.

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