October 21, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
M. R. v Aviva Canada - 16-001739 v Aviva 2017 CanLII 62162 (ON LAT)
Date of Decision: September 14, 2017
Heard Before: Adjudicator Rebecca Hines
NON-EARNER BENEFITS: Applicant fails to establish that life altered from pre-accident period; credibility of applicant questionable.
MR was injured in a car accident on January 24, 2014, and applied for SABs to Aviva. Aviva denied benefits. When they were unable to resolve the matter, it proceeded to the LAT.
- Is MR entitled to a non-earner benefit in the amount of $185.00 per week, from July 24, 2014 to date and ongoing?
- Is MR entitled to interest on overdue payment of benefits?
- Is MR entitled to costs of this hearing?
- MR is not entitled to a non-earner benefit, interest on overdue payment of benefits or the costs of this hearing.
MR, 21, involved in three previous motor vehicle accidents on January 28, 2010, May 12, 2012 and October 2, 2012, which resulted in serious injuries. MR was not at fault for these accidents and was 14 years old when the first accident occurred, and her injuries included soft tissue injuries, as well as adjustment disorder with anxiety and depression, and chronic pain associated with psychological factors.
On January 24, 2014, MR was t-boned the passenger side of another vehicle. MR sustained injuries to her neck, arm, wrist, hands, fingers and chest. Further she was diagnosed by a psychologist with severe adjustment disorder with mixed anxiety and depressed mood, post-traumatic stress disorder and cognitive disorder.
MR contends that the 2014 accident exacerbated her injuries from the three prior motor vehicle accidents and had the biggest impact on her from both a physical and psychological perspective. She submits that she suffers a complete inability to carry on a normal life as a is entitled to a non-earner benefit.
She relies on IEs from an exam in 2012, and in 2016 which found that she suffered a complete inability to carry on a normal life from the accumulative effect of all four accidents and found that the 2014 accident was the contributing factor to MR’s complete inability to carry on a normal life. MR also relied on the psychological IE in relation to treatment plans for psychological treatment and a chronic pain assessment. It recommended that she undergo a chronic pain assessment, and a chronic pain specialist report supports that she suffers from chronic pain and is further evidence of her complete inability. Finally, MR submitted her high school and college records to demonstrate how the accident has impacted her academically.
Aviva argued that MR’s complete inability to carry on a normal life was a result of her three prior car accidents. not as a result of the 2014 accident. Aviva submitted that MR’s quality of life has not deteriorated since the January 2014 accident but has instead improved. Aviva maintains that MR has not met her onus in demonstrating that she is entitled to a non-earner benefit as she has not provided a thorough analysis of her pre and post-accident activities. Further, MR failed to disclose important information to the IE assessors which discredits their opinions.
Aviva relied on its multi-disciplinary assessment in which three of the four assessors did not find that MR suffered a complete inability to carry on a normal life.
The Arbitrator reviewed the law and facts and noted that the Schedule provides that MR must suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The onus is on her to prove her entitlement to benefits.
The Arbitrator determined that MR is not entitled to a non-earner benefit because she has not met her onus in proving on a balance of probabilities that she suffers a complete inability to carry on a normal life. What was absent from MR’s affidavit, submissions and in her oral evidence was a thorough analysis with respect to the activities MR could do before the accident compared to those she cannot do post-accident. MR acknowledged the Heath case as the authority as far as setting out the factors one must take into consideration to demonstrate a complete inability.
The Arbitrator noted that that MR’s college records do not help in supporting her case as her marks improved. The Arbitrator found credibility issues with respect to MR’s claims of having to quit her job and move in with her parents as a result of the accident. It appeared the timing of her moving back home with her parents coincided with school ending and MR’s wedding in the summer of 2016. MR confirmed that she got married in the summer of 2016 and moved in with her husband and his family. In addition, the employment records were not submitted to back up MR’s self-reports.
To qualify for a non-earner benefit MR must prove that the injuries and associated pain were directly caused by the subject accident and have significantly interfered with almost all of MR’s pre-accident daily activities. The Arbitrator did not find that MR met her onus in providing evidence about her pre-accident activities. Therefore, the Arbitrator was unable to apply a comparison to her post-accident activities.