June 12, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant has complete inability to carry on a normal life - 18-001560 EAU v Allstate Insurance, 2019 CanLII 22201 (ON LAT)
Date of Decision: February 25, 2019
Heard Before: Adjudicator Kimberly Parish
NON-EARNER BENEFITS – Heath is the test for NEBs; IEs did not apply the criteria in Heath to the assessments; Adjudicator preferred the evidence of applicant that she suffers a complete inability to carry on a normal life.
EAU was 22 when she was hit from the side driving her car through an intersection on November 26, 2015. She was injured and sought benefits from Allstate pursuant to the SABs, but when Allstate refused to pay NEBs, EAU applied to the LAT for dispute resolution.
- Is EAU entitled to receive a non-earner benefit in the amount of $185.00 per week for the period May 26, 2016 to date and ongoing?
- Is EAU entitled to interest on any overdue payment of benefits?
- EAU is entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of May 27, 2016 to date and ongoing.
- EAU is entitled to interest on the overdue payment of benefits in accordance with s. 51 of the Schedule.
At the time of the accident, EAU was not working or attending school.
EAU’s position is that she sustained physical, psychological, emotional, and cognitive injuries as a result of the accident. Prior to the accident EAU maintains she was a happy and sociable person. Following the accident, she has become socially isolated from friends, has a strained relationship with her family, suffers from panic attacks, driving anxiety, sleeps only a few hours per night, and experienced significant weight loss. EAU has become depressed and suffers from ongoing pain and headaches. Additionally, she maintains she suffers from a complete inability to carry on a normal life as a result of the accident.
Allstate maintains that EAU was not working or going to school prior to the accident. Further, it is Allstate’s position that many of the physical and emotional impairments; including sleep problems, existed prior to the accident. Allstate affirms there is no significant difference between EAU’s activities of daily living prior to and following the accident. Allstate contends that EAU does not meet the test for non-earner benefits.
The test for entitlement to a NEB is set out in the Schedule. The insured person must prove that they suffer from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7) (a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident 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.
The leading authority which sets out the test which needs to be considered in determining entitlement to a NEB is the case of Heath v. Economical Mutual Insurance Company. It is necessary to compare EAU’s activities before and after the accident. Greater weight may be given to the activities which were most important to her. If some activities are still engaged in post-accident, they must also be assessed from a qualitative perspective.
EAU’s Life Prior to the Accident
EAU testified that she currently resides at home with her mother and her fiancé. At the time of the accident, she was not attending school, and had not worked since 2012. She was previously enrolled in an Early Childhood Education Program, and in 2014 she was enrolled in a Medical Office Administration Program. Allstate referenced a clinical note and record from EAU’s family doctor which noted she was expelled from that program. EAU provided an explanation at the hearing and stated she withdrew from the program. She wanted to become an esthetician but did not pursue this because she was looking after her father who had Cancer and passed away in January 2016. He had been sick for 13 years and his Cancer worsened in 2015. She was close to her father and assisted with taking him to his medical appointments, administering medications, preparing meals, and grocery shopping.
EAU was social and independent prior to the accident. She would often spend time with her friends, go shopping, to the movies, out to bars, and hang out with her friends at their houses. She enjoyed attending parties and going to Turkish community events with her friends. She travelled, skied and utilized various social media sites including Facebook, Instagram, and Twitter.
EAU lived with her mother and assisted with the household chores. EAU’s mother said her daughter would go over to her older sister’s house almost every day and would sometimes stay over for 1-2 nights, and that she and her sister were quite close prior to the accident. She was closely involved with her extended family as well.
The only health issue experienced by EAU prior to the accident was in 2012. EAU stated she had no psychological counseling or treatment prior to the accident. At the time of the accident EAU weighed approximately 175 pounds. The Adjudicator accepted this evidence.
EAU’s Life Following the Accident
EAU reported that she slept poorly, was depressed, had pain in her back and neck, headaches, trouble concentrating, mood swings, anxiety and panic attacks, she no longer socialized with friends and spent most of her time at home. She drives infrequently and doesn’t help around the house anymore. She’s lost 50 pounds and has a poor appetite.
The Adjudicator found the evidence showed a significant change in EAU’s activities of daily living which are consistent with the testimony provided by EAU, her mother, sister, and fiancé. The Adjudicator found them to be credible witnesses. EAU did not complete two college programs as she stated she was not interested in pursuing them.
The testimony of EAU’s mother supported changes following the accident. Her daughter no longer assists with the housekeeping or cooking and complains of headaches, low back and neck pain. When her daughter gets upset she tears her clothes and will hit her mother. Her daughter now sleeps very little and has panic attacks almost daily. She stated that her daughter hardly eats since the accident and has lost a lot of weight.
Surveillance of EAU conducted on the dates of August 1, 2 and 3, 2018, shows EAU leaving her house by car to go to the store, or to a drive-thru. EAU returns home after a short period of time. The surveillance report of August 1, 2018 noted EAU and her fiancé were in a vehicle at a gas station and they appeared to be having an argument while her fiancé was fueling the car. EAU and her fiancé both testified that they argue a lot. The Adjudicator found the surveillance evidence strongly corroborates the testimony provided by EAU and her fiancé as it showed EAU driving short distances locally for short periods of time to go to a local store, or drive-thru before returning to her home.
In support of her claim for NEBs, EAU relies on a disability certificate and the opinion of her family doctor that EAU suffers a complete inability to carry on a normal life. The doctor felt EAU was suffering from increased anxiety as a result of her pain. Post-accident, EAU was prescribed: Cymbalta for pain and Doxepin to assist with pain and sleep. The prescribed dosage for Cymbalta increased to 90 mg in December 2017, and has further increased to120 mg in May 2018. EAU saw a psychologist then changed pyschologist and had increased panic attacks that
The psychologist noted EAU’s father passed away several weeks after the accident and opined that the accident was “the straw that broke the camel’s back.” It was a significant stressor which overwhelmed her ability to cope and he concluded EAU has a complete inability to carry on a normal life as a result of the accident.
In support of its denial of the NEB, Allstate relies on its multidisciplinary IEs. All of the assessors found that EAU does not suffer from a complete inability to carry on a normal life as a result of the accident.
The Adjudicator afforded little weight to the reports as EAU was not assess according to the criteria set out in Heath. The Adjudicator did not prefer any of the IE assessments.
On the basis of the evidence the Adjudicator found that EAU is entitled to a non-earner benefit as she has proven on a balance of probabilities that she suffers a complete inability to carry on a normal life as a result of the accident. The following accident-related impairments sustained by EAU significant: chronic headaches, low back and neck pain, panic attacks, verbally lashing out at family members, disturbed sleep, she is socially withdrawn and has a lack of appetite contributing to significant weight loss. She also has driving anxiety which causes her to urinate while riding in a car. More than three years have passed since the accident. All of the above accident-related impairments have prevented her from engaging in substantially all of her pre-accident activities from a qualitative perspective. On this basis EAU has a complete inability to carry on a normal life as a result of the accident and is entitled to a non-earner benefit in the amount of $185.00 per week from May 27, 2016, the date which Allstate received the OCF- 3.