Self Represented Applicant Fails to Prove Case for NEBs

September 15, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Graveline and Intact

Date of Decision: July 24, 2017
Heard Before Adjudicator: Caroline King

Herby Graveline was injured in a car accident on November 11, 2009.  He applied for SABs from Intact Insurance but when the parties were unable to resolve their disputes through mediation  Mr. Graveline applied for arbitration at the FSCO

Issues:

1. Is Mr. Graveline entitled to receive a non-earner benefit, in the amount of $185.00, from May 11, 2009 to date and ongoing?
2. Is Intact liable to pay a special award because it unreasonably withheld or delayed payments to Mr. Graveline?
3. Is Intact liable to pay Mr. Graveline’s expenses in respect of the arbitration?
4. Is Mr. Graveline entitled to interest for the overdue payment of benefits?

Result:

1. Mr. Graveline is not entitled to receive a non-earner benefit, in the amount of $185.00, from May 11, 2009 to date and ongoing.
2. Intact is not liable to pay a special award as it did not unreasonably withhold or delay payments to Mr. Graveline.
3. Intact is not liable to pay Mr. Graveline’s expenses in respect of the arbitration.
4. Mr. Graveline is not entitled to interest as there is no overdue payment of benefits.

Mr. Graveline, 49,  was in a single car accident on November 11, 2009.   The following facts are not disputed: EMS services and police attended the scene of the accident;  Mr. Graveline attended at St. Joseph’s hospital in Elliot Lake on November 16, 2009;  Mr. Graveline had chiropractic treatment in April 2010, which according to Mr. Graveline, included “some cracking” [of his neck]; Mr. Graveline had an MRI scan of his cervical spine on May 4, 2010 which indicated disc herniation; on August 26, 2010, Mr. Graveline had neck decompression and fusion surgery done for a left C6-C7 disc herniation; that the application for benefits OCF-1 is dated May 27, 2013; and that the disability certificate OCF‑3 is dated October 29, 2013. 

Mr. Graveline asserts he suffered a continuous complete inability to carry on a normal life as a result of the accident and therefore is entitled to a non-earner benefit.  Intact and its medical experts assert that Mr. Graveline is not entitled to a non-earner benefit.

This decision will first discuss procedural aspects of this arbitration, including efforts to ensure that Mr. Graveline was able to fully participate in the proceeding.  A summary review of this information is provided as it helps to set up the context for the legal analysis of the issues in dispute which follows. 

The sole benefit in dispute in this arbitration is whether Mr. Graveline is entitled to receive a non-earner benefit.  As Mr. Graveline was self-represented, care was taken to ensure that Mr. Graveline understood that in accident benefit disputes heard at FSCO, all applicants must prove that it is more likely than not that they are entitled to the benefits claimed.  A great deal of care was takent to ensure Mr. Graveline understood all of his rights, what proof would be required to succeed in his case, to ensure he understood his rights to a French language hearing and interpretor.  Mr. Graveline was given breaks upon request to support his participation in the arbitration process.  He confirmed that he understood that he had to prove that it was more likely than not that he was entitled to the non-earner benefit as claimed.

Mr. Graveline provided information throughout the hearing that he was dissatisfied with many of the professionals that he interacted with before and after the accident.  The dissatisfaction related to how the professionals treated him and/or what information was included or left out of certain reports. 

The legislature has set a very high threshold for any applicant who seeks to prove that he or she is entitled to receive non-earner benefits.  Numerous FSCO and Ontario Court decisions have commented on the strictness of this test. In practical terms, it means that it is difficult to prove entitlement to this benefit. In this case, Mr. Graveline must prove that it is more likely than not that: i) as a result of the accident, he suffered a complete inability to carry on a normal life within the two years following the accident (which is November 11, 2011) and: ii) further that any impairment from the accident continuously prevented him from taking part in substantially all of Mr. Graveline’s pre-accident activities.

The Arbitrator reviewed the evidence and testimony introduced at the hearing included Mr. Graveline’s testimony and testimony from an adjuster for Intact.   For reasons unknown to Mr. Graveline and to Intact, there are no clinical notes from Mr. Graveline’s family physician before the accident and in the two years after the accident. Moreover, there are no clinical notes for Dr. McLean, Mr. Graveline’s next family physician, who began to care for Mr. Graveline from 2012 and who completed the OCF-3 Disability Certificate almost four years after the accident on October 29, 2013. Dr. McLean has subsequently retired.  Mr. Graveline did not bring forward any corroborating lay or professional witnesses.

At the time of the accident Mr. Graveline was not working.  He stated that he used to ‘drive a lot’, was involved in competitive sports, lifted heavy weights, was very physical, and that he could go to the grocery store and do some light dusting and vacuuming.  Mr. Graveline described himself as being “in perfect health” just before the accident, that he had no nerve damage before the accident, and that he was “on his way” to getting a job before the accident.   Mr. Graveline stated that he had helped to install security alarms prior to the accident.   Mr. Graveline stated that in the period just before the accident he was not having problems with depression and that he had ‘good relations with everyone’ at the time of the accident.

Mr. Graveline stated that pain from his accident related injuries wears him down and that he is “reduced to one percent”.  He stated that he goes to the grocery store once a month and can only do five minutes of housekeeping before he has pain.  He stated that he is depressed, does not go out with his children and his grandchildren, is withdrawn, and his relationship with his common-law wife has deteriorated.

The challenge with respect to Mr. Graveline’s testimony about his pre-accident health, is that it is undermined by significant inconsistencies with the available documentary evidence. The medical documentation contradicts Mr. Graveline’s testimony that he was in perfect health just before the accident.  There is scant reliable evidence to corroborate what Mr. Graveline describes as his pre-accident activities.  All of this in turn makes it difficult to meet this strict and stringent test for entitlement.  

Mr. Graveline’s health records are inconsistent with Mr. Graveline’s testimony about his pre-accident health.   Eight months before the accident, Dr. M, a neurologist, wrote to Mr. Graveline’s family doctor and indicated that Mr. Graveline had pain in his left trapezius muscle and pain going up the side of his neck which started “at least a couple of years ago” and that Mr. Graveline’s past medical history included depression.  Seven months before the accident, Mr. Graveline underwent a nerve connection study as he reported having “numbness” or “a feeling of falling asleep in his left arm”.  There is also an indication in the medical records that Mr. Graveline had reported that his neck pain started two years before the accident. There are other records that Mr. Graveline’s health was not good before the accident.  Mr. Graveline’s common law wife’s ODSP file indicated that on July 31, 2008, Mr. Graveline was in the ODSP office and that he stated that “[he] was unemployable”.  The St. Joseph’s Emergency report, taken five days after the accident, indicated that he had anxiety and depression and was on medication.  Mr. Graveline’s testimony about his pre-accident health is not supported by the medical and other documentation and he therefore lacks credibility on this point.

Mr. Graveline’s lack of credibility about his pre-accident health casts doubt on Mr. Graveline’s testimony about his pre-accident activities. Unfortunately, apart from Mr. Graveline’s testimony, there was no other document or contemporaneous evidence which corroborated his stated normal activities before and at the time of the accident.

It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life.  Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all his pre-accident activities.  The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”.

Upon reviewing the case and the law the Arbitrator noted the test for entitlement for a non-earner benefit is very strict.  It is clear Mr. Graveline is very distressed about the current state of his health.  However, the Arbitrator was not satisfied that Mr. Graveline provided sufficient, persuasive and reliable evidence to establish that he is entitled to non-earner benefit and the application is therefore dismissed.

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