Pre-existing conditions not worsened - application for NEBs denied - MB v Certas

November 28, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

M.B. and Certas

Decision Date: October 25, 2017
Heard Before: Adjudicator Paulina Gueller

NON-EARNER BENEFITS: Pre-existing conditions not worsened/ application denied

M.B. was injured in a car accident on October 15, 2013 when she was struck as she was turning. She left the accident scene but took and ambulance from home to the hospital where prescribed medication for pain and sleep. She sought accident benefits from Certas however, when mediation failed MB applied for arbitration.

Issues:

1. Is M.B. entitled to receive a non-earner benefit of $185.00 per week from April 15, 2014 to date and ongoing?
2. Is M.B. entitled to interest for the overdue payment of benefits?
3. Is either party entitled to its expenses in respect of the Arbitration?

Result:

1. M.B. is not entitled to receive a non-earner benefit from April 15, 2013 to date and ongoing.
2. M.B. is not entitled to interest as no benefits are payable.
3. The Insurer is entitled to its expenses. If the parties cannot agree on the quantum of expenses of this matter, they may request an appointment before an Arbitrator in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“DRPC”).

Several Motions were considered at the outset of the hearing. The parties advised that they agreed that MB would utilize the evidence provided in the Insurer’s Brief. MB then requested I allow the Disability Certificate to be admitted. It supported MB’s entitlement to NEBs and it was not included in the Insurer’s Brief. Considering that the parties agreed to use the Insurer’s Brief, I advised the parties that MB would not be allowed to enter any evidence that is not in the Insurer’s Brief.

The Insurer raised a motion to exclude a witness identified only as Ms. Rabia, because no last name was provided in MB’s letter dated July 12, 2017 or in the Summons to Witness form dated August 8, 2017. Given the Summons to Witness form did not specify any document that she ought to bring to the Hearing, and the Insurer had not been provided with the clinical notes and records the witness was not allowed to testify.

MB, currently 60 years old, was involved in a car accident on October 15, 2013. She had a medical history of pre-existing depression, anxiety, PTSD and chronic pain before the MVA.  MB worked as an accountant for more than 20 years. In 2009, she lost her job. She had a traumatic MVA in 2011 that prevented her from re-entering the workforce.  MB suffered serious psychiatric issues since 2002. MB testified that this accident has aggravated and intensified the pain from her 2011 accident. She testified that before the MVA in 2011 she was a yoga instructor.

MB stated that since the MVA in 2013, she no longer does the cooking because her hands shake and her fingers are numb. She testified that she may go out for dinner, order in food, or that a friend, or her case workers assist with the cooking. She started to a case worker in 2013 or 2014 following the MVA, as a Psychotherapist from the Centre for Addiction and Mental Health, applied for her to receive assistance from a case worker. CAMH currently provides support in the form of sending a case worker to her home, as she lives on her own, every week and motivates and helps her. A nurse meets with her once a week and texts her every day. MB testified that she was accepted at CAMH for depression and anxiety, but did not remember whether she applied to CAMH, before or after the MVA in 2013. She has been receiving benefits from ODSP since 2012 and has been receiving assistance through Community and Home Assistance to Seniors prior to 2013.

MB testified that she drives to do her grocery shopping and short errands, but does not drive long distances. She attends workshops 5 days per week for 7 hours per day. She testified she has dinner with neighbours who reside in her building. Regarding her family situation, in December 2013 she moved out permanently from the family home.

MB testified that she was very healthy before the 2011 MVA. She testified that her pain had intensified following the 2013 MVA. Clinical notes and records dated May 28, 2013 from her family doctor stated she had, “chronic multiple joints pain, Anxiety and insomnia. Pain getting worse, states not able to walk”.

In 2002, she was admitted into hospital for a suicide attempt. She testified that she continued to remain with her husband for the sake of the children. Her daughters started to disrespect her. She lost her job as an accountant in 2009 and after a traumatic MVA in 2011, she lost a job opportunity in February 2011 and could not re-enter the workforce. Around 2012 she applied for ODSP benefits and started to see a Psychiatrist.

MB’s family physician since March 6, 2012, testified that MB’s depression became worse sometime in 2015 and he referred MB to a specialist and prescribed her medication for her depression. His CNRs indicate that MB had chronic pain, anxiety and insomnia throughout 2013. On April 9, 2013, he increased MB’s medication. He testified that prior to the 2013 MVA, MB could sometimes not walk, and she suffered from depression and anxiety. He also supported MB on several occasions by providing her counselling relating to the separation from her husband, and also for pain, depression and anxiety.

The psychiatrist, testified that MB was referred to him by the family doctor. MB attended 6 sessions between February 1 and December 1, 2016. He produced a report addressed on February 1, 2016. MB experienced nightmares, flashbacks, problems with concentration and sleeping, and decreased interest in activities resulting from memories of her injuries. His report noted that on AXIS I, MB has severe Major Depression, Persistent Depression Disorder, PTSD, pain associated with psychological factors, and a general medical condition.  He testified that he was not aware that MB was involved in a 2013 MVA and that the family issues contributed to the depression. He testified that all MB’s issues are from the MVA that occurred in 2011.

Another psychiatrist, completed an IE on December 17, 2015. He testified that MB had a history of pre-mental depression. In 2002, she was admitted to the hospital. After the 2011 MVA she developed depression, major depression and PTSD. She underwent different treatments and still had psychiatric diagnoses up to the 2013 MVA.  MB has had an ongoing conflict with her family following the 2011 MVA. She separated from her husband and her children stopped talking to her as they blamed her for the separation from their father. He stated that within her culture, women who leave a marriage are not respected. MB’s previous psychiatric diagnoses were the same, but they became aggravated after the 2013 MVA. His opinion is that she does not meet the criteria for the NEB because there are no substantial differences comparing pre-and post-MVA activities of daily living.

A physiatrist, completed an IE report dated January 22, 2016. He testified that MB made constant reference to the 2011 MVA. His opinion was that MB had “a high perceived level of disability, pain behaviour, self-restricted range of motion and inconsistency of physical examination”.] He opined also that chronic pain may impede her recovery, because MB still believed she was unable to recover.  He concluded that MB sustained an aggravation of her pre-existing chronic pain, and that she has reached maximum medical recovery to the injuries sustained in the 2013 MVA. Also, from a musculoskeletal point of view, his opinion is that MB has not suffered a complete inability to carry on a normal life as she had chronic pain prior to the 2013 MVA.[10]

The Arbitrator reviewed the evidence and the law and determined that the test for the NEB is that a person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the MVA. On a balance of probabilities, MB must prove that as a result of the MVA, she is continuously prevented from engaging in substantially all pre-MVA activities. The issue in this case is whether the MVA exacerbated the psychiatric issues, preventing M.B. from engaging in the normal life she had prior to the MVA.

Based on the medical evidence presented the Arbitrator was persuaded that MB failed to prove that her life significantly changed because of the 2013 MVA. All the reports and testimonies, including that of her family physician and personal Psychiatrist, indicate that her normal life changed as a consequence of the 2011 MVA and was aggravated before the 2013 MVA because of her family conflicts and her separation from her husband. MB’s testimony was vague, inconsistent and unreliable. In addition, she testified she applied for CAMH but did not produce the file. Her application for NEBs is denied.

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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.