Insured unable to show complete inability to carry on a normal life.

January 10, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Heard Before: Adjudicator Rosemary Muzzi

Date of Decision: April 30, 2015

REASONS FOR DECISION

Overview:                 

Nancy Beltrame was injured in a car accident on July 2, 2009. She hit her head when she was knocked backward as the doors of a street car closed. She experienced a decline in physical and other capabilities, and was diagnosed with both physical and psychological conditions. She received treatment and Dominion paid benefits for housekeeping assistance for almost the entire two years after the accident.  Non-earner benefits were denied. Ms. Beltrame claims NEBs since she suffered a complete inability to carry on a normal life as a result of and within two years of the accident in addition to other issues in dispute. After a failing to resolve their disputes at mediation Ms. Beltrame applied for arbitration at the FSCO.

The issues in this hearing are:

1. Is Ms. Beltrame entitled to receive a NEB from the date of accident and ongoing?

2. Is Ms. Beltrame entitled to attendant care benefits at the rate of $753.79 monthly from the date of accident to July 1, 2011?

3. Is Ms. Beltrame entitled to expenses up to $100 per week for housekeeping and home maintenance services provided from July 2, 2009 to August 27, 2009 and from May 21, 2011 to June 8, 2011?

4. Is Ms. Beltrame entitled to the costs of the following examinations: (1) $4,850 for an orthopedic assessment dated May 5, 2011; (2) $1,649.98 for an in-home assessment dated April 8, 2013; and (3) $1,681.47 for an OT assessment dated June 26, 2013?

5. Is Ms. Beltrame entitled to interest pursuant to the Schedule on any amounts outstanding?

Result:

1. Ms. Beltrame is not entitled to a non-earner benefit.

2. Ms. Beltrame is entitled to $1,560.97 for attendant care services.

3. Ms. Beltrame is entitled to $100 per week in housekeeping benefits for the periods during which those benefits were withheld.

4. Ms. Beltrame is not entitled to (1) $4,850 for an orthopedic assessment dated May 5, 2011; (2) $1,649.98 for an in-home assessment dated April 8, 2013; and (3) $1,681.47 for an occupational therapy assessment dated June 26, 2013.

5. Ms. Beltrame is entitled to interest payable pursuant to the Schedule for the amounts withheld.

ANALYSIS:

Ms. Beltrame asserts that the 2009 accident caused her injuries and pain, psychological issues and cognitive difficulties that seriously limit all of her activities. She has abandoned her plans to return to university to pursue a master’s degree. She no longer engages in the same way socially with her friends and family. She has lost her ability to concentrate and multi-task. Overall she has less engagement in all her regular activities. Dominion argues that Ms. Beltrame does not meet the onerous test for NEBs in that she does not show the degree of disability required for entitlement.

The non-earner benefit that Ms. Beltrame seeks has as its purpose to provide compensation to persons who have suffered a severe diminution in their overall quality of life. The legal test for entitlement is that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The Schedule says that this means that I must be satisfied that Ms. Beltrame was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

The Arbitrator reviewed the medical evidence and the law in this case, and determined that there is insufficient evidence on balance to show that Ms. Beltrame suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Her deficits were by and large due to her feelings of being inadequate; she was not enjoying her life as before, and her frustration was leading to a spiral in terms of the loss of her identity.  In terms of her function, her limitations are much less serious.  The medical consensus was that her deficits are not severe, and that she did not suffer a complete inability to carry on a normal life as a result of the accident.

The attendant care benefit shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. No evidence was presented that Ms. Beltrame hired someone to assist her with her personal care after the accident, apart from the weekly hair appointment and her pedicures every two to three weeks.  The Arbitrator found Ms. Beltrame is entitled to payment for this assistance for the 104 weeks following the accident using the Form 1 hourly rate payable for routine personal care for accidents on or after March 2008, which is $11.23.

The only payments for housekeeping and home maintenance services outstanding in this case are for two short periods of time: from July 2, 2009 to August 27, 2009 and from May 24, 2011 to June 8, 2011. Dominion did not pay the expenses incurred in these periods because Ms. Beltrame failed to provide updated disability certificates to Dominion at the time they were requested and failed to provide a reason for her failure to submit them.  The evidence before the Arbitrator indicates that apart from her failure to provide the required documentation, Ms. Beltrame otherwise qualified to receive payments for housekeeping services during those periods and had incurred such expenses. Further, the documents before the Arbitrator include a copy of a disability certificate from Dr. Caravaggio dated May 24, 2011, so it appears that at least one of the requested certificates was prepared. Moreover, Ms. Beltrame’s explanation for the failure to provide the documentation as a reasonable one and, in these circumstances, the Arbitrator found that Ms. Beltrame should not be denied these payments. On that basis Ms. Beltrame is entitled to the outstanding payments for housekeeping and home maintenance services at the rate of $100 weekly for the periods July 2, 2009 to August 27, 2009 and May 24, 2011 to June 8, 2011. 

The Arbitrator heard no evidence about the need for the assessments Ms. Beltrame claims and Dominion submitted that similar if not identical assessments had been conducted a short time before these additional assessments were proposed. Therefore no payment is required.

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.