Insured found to be on pre accident trajectory for activities of daily living.

March 26, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Mooney and Wawanesa

Date of Decision: February 26, 2016

Heard Before: Adjudicator Marvin Huberman

Ms. Carolyn Mooney was injured in a car accident on November 14, 2007 at the age of 18. She was hit by a car after getting off a public transit bus.  She was rendered unconscious and was transported to York Central Hospital.  She was intubated and subsequently transferred to St. Michael’s Hospital in Toronto.  In this accident, Ms. Mooney sustained a brain injury with resultant cognitive impairment, as well as numerous other injuries and impairments, including a fractured pelvis, a fractured left leg, and an injury to her fourth cranial nerve resulting in double vision.

She applied for and received statutory accident benefits from Wawanesa, however when issues arose between the parties concerning entitlement to certain SABs Ms. Mooney applied for arbitration at the FSCO.

The issues in this Hearing are:

1. Is Ms. Mooney entitled to receive a non-earner benefit of $320.00 per week from April 1, 2011, to date and ongoing, pursuant to section 12 of the 1996 Schedule?

    

2. Is Ms. Mooney entitled to attendant care benefits from February 15, 2008, to date and ongoing, less amounts paid by Wawanesa, pursuant to section 16 of the 1996 Schedule, as follows:

1. February 15, 2008 to April 15, 2008 at $3,768.43/month;

2. April 16, 2008 to May 20, 2010 at $3,620.94/month;

3. May 21, 2010 to January 27, 2011 at $2,879.27/month;

4. January 28, 2011 to April 23, 2012 at $2,737.87/month; and

5. April 24, 2012 to February 25, 2013 at $454.37/month?

1. Is Ms. Mooney entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from February 15, 2008, to date and ongoing, less amounts paid by Wawanesa, pursuant to section 22 of the 1996 Schedule?

    

2. Is Ms. Mooney entitled to payment for the following costs of examinations, pursuant to sections 24 and 42.1 of the 1996 Schedule:

1. $5,298.89 for a section 24 Attendant Care Report dated June 25, 2010;

2. $3,149.89 for a section 25 Attendant Care Report dated May 28, 2012;

3. $1,969.81 for a section 25 Attendant Care Report March 1, 2013; and

4. $2,600.00 for a Rebuttal to an Insurer Examination dated September 15, 2011?

1. Is Ms. Mooney entitled to receive the following rehabilitation benefits, pursuant to section 15 of the 1996 Schedule:

1. $1,106.72 for public transit costs to school incurred from January 8, 2013 to December 16, 2013;

2. $125.00 for the costs of rewriting her driving test; and

3. $33.89 for an Ikea shoe cabinet as claimed on September 10, 2014?

1. Is Ms. Mooney entitled to interest for the overdue payment of benefits awarded, pursuant to the 1996 Schedule and the 2010 Schedule?

Result:

1. Ms. Mooney is not entitled to receive a non-earner benefit of $320.00 per week from April 1, 2011, to date and ongoing, pursuant to section 12 of the 1996 Schedule.

    

2. Ms. Mooney is entitled to attendant care benefits from February 15, 2008, to date and ongoing, less amounts paid by Wawanesa, pursuant to section 16 of the 1996 Schedule, as follows:

1. February 15, 2008 to April 15, 2008 at $3,768.43/month;

2. April 16, 2008 to May 20, 2010 at $3,620.94/month;

3. May 21, 2010 to January 27, 2011 at $2,879.27/month;

4. January 28, 2011 to April 23, 2012 at $2,737.87/month; and

5. April 24, 2012 to February 25, 2013 at $454.37/month.

1. Ms. Mooney is entitled to housekeeping and home maintenance benefits in the amount of:

1. $100.00 per week from February 15, 2008 to February 26, 2013, and

2. $92.00 per week from February 27, 2013 to date and ongoing, less amounts paid by Wawanesa, pursuant to section 22 of the 1996 Schedule.

1. Ms. Mooney is entitled to payment for the following costs of examinations, pursuant to sections 24 and 42.1 of the 1996 Schedule and subsection 25(5) of the 2010 Schedule:

1. $5,298.89 for a section 24 Attendant dated June 25, 2010;

2. $2,000.00 for a section 25 Attendant Care Report dated May 28, 2012;

3. $1,969.81 for a section 25 Attendant Care Report dated March 1, 2013; and

4. $2,000.00 for a Rebuttal to an Insurer dated September 15, 2011.

1. Ms. Mooney is not entitled to receive the following rehabilitation benefits, pursuant to section 15 of the 1996 Schedule:

1. $1,106.72 for public transit costs to school incurred from January 8, 2013 to December 16, 2013;

2. $125.00 for the costs of rewriting her driving test; and

3. $33.89 for an Ikea shoe cabinet as claimed on September 10, 2014.

1. Ms. Mooney is entitled to interest for the overdue payment of benefits awarded, pursuant to the 1996 Schedule and the 2010 Schedule.

Following the accident Ms. Mooney fully-weight bearing and ambulatory within four months and she returned to High School during the 2008 winter term with accommodations in place.  Ms. Mooney began the Adult Learning Education Program (“ALEP”) in September 2008, completing the program in June 2009, and receiving her High School Diploma. As part of the ALEP program, she started working at Home Depot in October 2008, where she continued to work with accommodations from her employer until October of 2014 with the support of a full rehabilitation team, including a case manager, various assessments at Holland Bloorview Kids Rehabilitation Hospital, various rehabilitation support workers, occupational therapists, various speech language pathologists, a treating psychologist, and assessments by experts in neuropsychology, clinical psychology, and rehabilitation psychology.

In January of 2013, Ms. Mooney started an educational program called “Redirection Through Education” at George Brown College, designed for people battling addiction and mental health issues, and with a full support team, she graduated from the program in April of 2014 with Honours and a Dean's Medal. It took her four semesters to finish the three semester program.  In September of 2014, Ms. Mooney enrolled in the Social Service Worker Program at George Brown College, and achieved a near-perfect Grade Point Average, with the assistance of significant accommodations and a full rehabilitation team in place.  She was enrolled in this program at the time of this Arbitration proceeding.

Wawanesa has continued to pay for the treatment plans of all of Ms. Mooney’s rehabilitation team, for rehabilitation services they have been providing to Ms. Mooney, from the date of the accident through to the present time.

The Arbitrator noted that the burden of proof rests with Ms. Mooney, and she must prove on a balance of probabilities that she is entitled to each benefit claimed. The Arbitrator reviewed the law, the definitions and previous cases in his consideration of the case.

The Arbitrator took care to note that:

section 2(4) of the 1996 Schedule “a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

Arbitrator Huberman then considered what a ‘normal life’ is, noting that this enquiry must focus on the claimant and their pre-accident activities, and not some objective standard. The Arbitrator should be allowed to rely on the applicant’s testimony and to assign greater weight to those activities which are most important to the claimant when considering NEBs. Arbitrator Huberman considered previous cases and noted that considering a person’s ability to engage in normal life is complex, and that simply engaging in the motions of living is not enough.

Ms. Mooney maintains that she is entitled to NEBs because she meets the criteria set out in in the 1996 Schedule. Ms. Mooney submits that “activities to which a student should be looking forward to -obtaining work commensurate with their education and living independently” are valid factors that ought to form a significant part of the assessment of her entitlement to non-earner benefits. She continues to live at home, and she submits that her post-accident life – her activities of daily living, her ability to be independent, her ability to function on a day-to-day basis, her education, and her social and recreational activities – be assessed through the lens of a qualitative basis, asking the question of whether she is truly “engaging in her post-accident activities.” Ms. Mooney further submits that, on a balance of probabilities, she will be unable to achieve any of the “activities to which a student looks forward to,” including obtaining work commensurate with experience and being able to live independently. 

She contends that nearly every aspect of her life since the accident has been heavily influenced by the significant accommodations and supports that she has had in place and has required.  Considering the level of support and accommodation she has received in nearly every aspect of her life since the accident and the way her life has been since the accident, Ms. Mooney submits that her life cannot be called “normal,” and that, since the date of the accident, she has suffered “a complete inability to carry on a normal life.”, and that her need to these supports answers the question of whether she “suffers a complete inability to carry on a normal life” pursuant to section 12(1)3 of the 1996 Schedule. She contends her mental health issues and her brain injuries act together to make her life difficult.

The balance of the medical evidence demonstrates that the injuries she suffered in the motor vehicle accident of November 14, 2007, have been superimposed on her vulnerable pre-accident profile. All of the medical evidence supports the fact that Ms. Mooney suffered a significant brain injury in this accident.  Numerous doctors have provided the opinion that Ms. Mooney’s injuries from the accident have caused cognitive and behavioural impairments in her functioning which impact on virtually every aspect of her daily living, and therefore result in a complete inability to carry on a normal life.

Wawanesa submits that no medical expert has provided an opinion that Ms. Mooney suffers from a complete inability to live a normal life.  Wawanesa contends that Ms. Mooney has not met the burden of proof with respect to any of the claims presently in dispute.  Her case rests solely on her and her mother’s subjective reporting, which was neither credible nor reliable, and on some flawed reporting by her experts, who were not provided with crucial pre-accident medical evidence. They argue she has completed school and that she worked for 6 years post-accident. Wawanesa submits Ms. Mooney did not suffer a complete inability to carry on a normal life as a result of her car accident injuries.

Wawnesa also argues that her full pre-accident circumstances need to be considered. Ms. Mooney had been identified as a gifted student in grade three, but that beginning age 13 had suicidal tendencies and was hospitalized, diagnosed with depression and medicated. In 2004-5 her condition worsened and her diagnosis expanded to include OCD, bi-polar and anxiety disorders. In grade 10 she was designated as having a mild-to-moderate learning disability. In 2007 she was in a car accident which resulted in injury and psychological treatment. She attempted suicide. She failed several classes that term. She engaged in self harm (cutting), and binging and purging. She did not carry a full academic course load in high school and failed many classes, dropping out of the gifted programme entirely.

In response to Wawnesa’s position, Ms. Mooney submits that the “complete inability” test is a legislative/legal test to be applied by the Arbitrator to the facts of the case and NOT a medical test.  The Arbitrator is the person to assess whether those impairments satisfy the test of “complete inability to carry on a normal life.”, and that the Insurer’s doctors who attempted to give an opinion on the “complete inability test” did so without properly considering all of the evidence relating to Ms. Mooney’s post-accident functioning, and without reference to how the test has been interpreted through the case law.  As such, their opinions are of little value in assessing the test. She argues that Wawanesa is picking and choosing their evidence to somehow portray she is doing ‘better’ post-accident than pre-accident.

Medical evidence shows that as time went on from the accident Ms. Mooney felt physically better but that she had poor planning behavior and task initiative which resulted in issues with the completion of regular tasks like housekeeping. Her mental illness had progressed, and this had created problems with the ability to establish and maintain relationships.

The Arbitrator concluded that, as a result of the accident, Ms. Mooney sustained impairments that affected her ability to engage in substantially all of the activities in which she ordinarily engaged before the accident.  This finding is supported by the preponderance of evidence. However, Ms. Mooney has failed to establish on a balance of probabilities that the changes in her post-accident life, from April 1, 2011, onwards, amounted to her being continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.  The arbitrator felt that the preponderance of evidence showed the Ms. Mooney was back on her pre-accident trajectory with respect to her activities of daily living.

The Arbitrator noted that Ms. Mooney had required and received significant school/educational and employment accommodations and extensive supports following the accident, and that Wawanesa has continued to pay for the treatment plans submitted by each member of Ms. Mooney’s rehabilitation team for rehabilitation services provided to her from the date of the accident, November 14, 2007, to the present time.

In the matter of Attendant Care Benefits the Arbitrator noted Section 16 requirements that an insurer is required to pay an attendant care benefit for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of the accident for services provided by an aide or attendant.  The monthly amount payable shall be determined in accordance with Form 1.

The next issues in dispute are whether additional attendant care benefits, housekeeping benefits and cost of examinations, should be paid to Ms. Mooney pursuant to the various Form 1s (3 of them retroactive). The Arbitrator reviewed the law, and the totality of evidence submitted and determined that Ms. Mooney has established on a balance of probabilities that she reasonably required attendant care, housekeeping and the disputed costs of examinations.

The Arbitrator determined that the rehabilitation benefits requested for public transit costs, rewriting a driver test, and the Ikea shoe cabinet were not warranted as she failed to prove on a balance of probabilities that she is entitled to each benefit claimed. The Arbitrator ordered interest paid on overdue amounts.

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.