Insured Fails to Make Case for NEBs (Non Earner Benefits)

April 04, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

16-000879/AABS: NEBs; disclosure of documents; late submissions; LAT Rules; applicant submits documents three days late prejudicing the respondent and the documents are disallowed; conflicting testimony; applicant must show details of pre-accident life and how it is altered post-accident; applicant fails to prove that on balance of probabilities that she suffers from a complete inability to carry on a normal life.

Date of Decision: January 24, 2017
Heard Before: Adjudicator Anna Truong

S.G. was involved in car accident on January 2, 2015, and sought benefits pursuant to the Schedule.  She applied for a non-earner and rehabilitation benefit, but was denied by AABS. S.G. disagreed with this decision and applied for dispute resolution services to the LAT.

PRELIMINARY ISSUE

S.G. submitted documents 3 days after the deadline outlined in the case conference adjudicator’s Order without any explanation why it was late. This reply included two brand new documents that had not been previously disclosed to AABS. AABS requests that these two documents be excluded from consideration as the materials are in breach of the case conference adjudicator’s Order prejudices AABS since it did not have a chance to review and respond to the report. AABS further submits that S.G. did not disclose the documents in accordance with the LAT Rules and did not seek consent of the Tribunal prior to disclosure.

In response, S.G. sent correspondence and submits that the case conference adjudicator indicated materials may still be accepted if submitted within “a few days” after the due date and that the case management officer confirmed that Reply materials would still be accepted as long as they were not submitted immediately before the written hearing. S.G. submits that the physician’s report and clinical notes were both received on November 1, 2016 and were served immediately upon receipt. S.G. further submits that the Rules require disclosure of documents at least 10 days prior to the date of a hearing and S.G. submitted it well in advance of the November 16, 2016 hearing. Therefore, S.G. requests that the two documents be considered given the circumstances.

The Arbitrator reviewed the Rules include provisions that allow the Tribunal to order that the parties either disclose its evidence at least 10 days prior to the hearing or as ordered by the Tribunal. If a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the consent of the Tribunal. S.G. did not request the consent of the Tribunal prior to the disclosure of these documents and did not include an explanation with the documents as to why they were submitted after the deadline. The Arbitrator did not have any evidence of what was discussed at the Case Conference and what was discussed with the case management officer. On this basis the Arbitrator determined it would prejudice AABS and go against the fundamental principles of fairness if these documents were allowed into the record.

Issues:

1. Is S.G. entitled to a non-earner benefit in the amount of $185 per week from July 3, 2015 to present?
2. Is S.G. entitled to a rehabilitation benefit in the amount of $147?
3. Is S.G. entitled to interest for any overdue payment of benefits?
4. Is S.G. entitled to costs of the proceeding?
5. Is S.G. entitled to a “special award”, because AABS unreasonably withheld or delayed payments pursuant to section 10 of Ontario Regulation 664?

RESULT

Based on the totality of the evidence the Arbitrator found that:

1. S.G. is not entitled to a non-earner benefit in the amount of $185 per week from July 3, 2015 to present.
2. S.G. is not entitled to a rehabilitation benefit in the amount of $147, being the balance of a partially approved OCF-18 Treatment and Assessment Plan dated March 20, 2015 by Bloor West Therapy Orthopaedic & Sports Medical Centre.
3. S.G. is not entitled to any interest.
4. S.G. is not entitled to costs of the proceeding.
5. S.G. is not entitled to a “special award”.

1.   Non-Earner Benefit

The test for entitlement to a non-earner benefit is set out the Schedule. S.G. must prove that she suffers from a complete inability to carry on a normal life within 104 weeks of the accident.  AABS has submitted the seminal case of Heath v. Economical which outlines several principles for the determination of entitlement to a non-earner benefit. These principles include:

• There must be a comparison of S.G.’s activities and life circumstances before the accident to those post-accidents.
• S.G.’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.
• All of S.G.’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to S.G.’s pre-accident life.
• S.G. must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
• “Engaging in” should be interpreted from a qualitative perspective. Even if an Applicant can still perform an activity, if S.G. experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.
• If pain is the primary reason that an Applicant cannot engage in former activities, the question is whether the degree of pain practically prevents S.G. from performing those activities. The focus should not be on whether S.G. can physically perform those activities.

S.G. submits two OCF-3s and a psychological report. stating that S.G. suffers from low back pain and an injury of muscle and tendon at neck level/cervical spine, and that she meets the test for a non-earner benefit for a duration of more than 12 weeks. Another OCF-3 states that S.G. suffers from low back pain, pain in her right shoulder, post-traumatic nervousness and a state of emotional shock and stress. Again, it indicates that S.G. met the test for a non-earner benefit for a duration of more than 12 weeks. In the Psychological Report it is noted that S.G. reports that pre-accident:

• She did the household chores, including cooking and preparing meals.
• She regularly cleaned washrooms, vacuumed, swept the floors, washed dishes, dusted and did laundry.
• She enjoyed shopping, hosting events and spending time with her family.
• She took care of her children.

The Report opines that post accident S.G. suffers a complete inability to carry on a normal life because of the subject accident. The accident has “impacted every facet” of her life and she is unable to participate in her day to day activities. He further opines that she is limited both physically and emotionally and is unable to engage in most of her pre-accident activities, including her caregiving and household activities.

In the Independent Psychology Evaluation of a clinical psychologist notes that S.G. reports that post-accident:

• She wakes her children and helps them get organized and ready for school.
• She will try to make her children breakfast and lunch.
• She will drive to pick up her children at school.
• She will occasionally go to the grocery store to get snacks for her children.
• She typically goes to church, but has not gone in the past three weeks.
• She is independent of all self-care activities.
• She can drive without significant anxiety both on the highway and city streets, but she feels anxious as a passenger.

The Report concludes that S.G. suffers from Major Depressive Disorder, but from a psychological perspective she does not suffer from a complete inability to carry on a normal life as a result of injuries sustained in the accident.

An IE notes that S.G.’s presentation is consistent with sprain/strain of the cervical and lumbar spine, sprain/strain of the right shoulder girdle and post-traumatic headaches, and that from a strictly musculoskeletal perspective, S.G. does not suffer a complete inability to carry on a normal life.                 

On September 20, 2015, S.G. was involved in a second motor vehicle accident and applied for benefits. AABS arranged additional assessments to determine her entitlement to those benefits.

In the Assessment of Attendant Care Needs a Registered Occupational Therapist opined that S.G. was independent of all her personal care tasks and the only housekeeping task that she required assistance with was toilet cleaning, and did not find any physical or functional impairment that prevents S.G. from performing all of her pre-accident self-care tasks.

An Independent Physiatry Evaluation could not be completed because S.G. become too emotional. She provided conflicting reports about her ability to drive, and noted she attends church to pray daily. In the Independent Psychology Evaluation noted that S.G. reported that prior to the second accident:

• She would prepare meals for the kids, shower then drive them to school.
• She attended mass daily in the morning.
• She would spend some of her morning playing with her son.
• She would pick up her children from school.
• She stopped driving her children to activities after the first accident.
• She received some help from her mother-in-law with respect to cooking and cleaning chores.
• She can independently manage all personal care tasks.
• She is able to make the beds, but requires some assistance with meal preparation and childcare duties.

S.G. reported to him that after the second accident:

• She continues to be independent with personal care tasks.
• She continues to be able to make the beds and prepare meals, but requires some assistance.
• She spends most of her day caring for her three-year-oldson.
• She visits one of her friends, who sometimes prepare dinner for her and her kids.
• She could not do any housekeeping after the second accident and that her mother-in-law completed all these tasks.
• She continues to drive including on highways.
• She continues to attend church on a daily basis.
• She speaks to her friends on a regular basis about her difficulties.
• She can walk for 30 minutes, sit for 30-45 minutes, stand for 30-45 minutes and drive for 20 minutes.

The report concluded S.G. suffers from Major Depressive Disorder and a Pain Disorder, but she does not suffer from a complete inability to carry on a normal life from a psychological perspective.

The Arbitrator noted the conflicting reports of what S.G. can and cannot do after the first accident. S.G. did not adduce any direct evidence to demonstrate what her activities and life circumstances were before the accident. There is no direct comparison of what she could do before the accident and what she could not do after the accident. S.G. did not adduce any evidence as to what activities and life circumstances were important to her before the accident and how she is prevented from engaging in those activities as a result of her accident-related impairments.

The evidence shows S.G. was a homemaker and mother of four before the accident. Post-accident, she continues to be a homemaker and mother of four, albeit with some impairments and difficulties. Being unable to engage in activities post-accident that you engaged in pre-accident is not determinative of entitlement to a non-earner benefit. S.G. must prove that she is unable to engage in substantially all of her pre-accident activities. S.G. has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.