December 04, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
LM v Gore Mutual Insurance Company, LAT 16-003772 2017 CanLII 69448 (ON LAT)
Decision Date: October 4, 2017
Heard Before: Adjudicator Deborah Neilson
NON EARNER BENEFITS: did applicant suffer complete inability to carry on normal pre-accident life; failing to mention an activity in the affidavit does not mean it isn’t important and should not be considered;
LM was a pedestrian struck in a car accident on December 21, 2015. She sustained fractures to her right wrist and a right hip requiring surgery. She applied for SABs to Gore who paid LM weekly NEBs from June 2, 2016 up to August 8, 2016, at which point it denied LM was entitled to any further NEBs. When mediation failed LM applied for arbitration to the LAT.
The Arbitrator found that LM has met her onus proof and that she is entitled to NEBs in the amount of $185.00 per week from August 9, 2016 to date and ongoing for the reasons that follow.
Section 12(1)1 of the Schedule sets out the test for the non-earner benefit and requires an insurer to pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person “suffers a complete inability to carry on a normal life as a result of…the accident.” It clearly defines ‘complete inability’.
Gore disputes that LM’s impairments have continuously prevented her from engaging in substantially all of her pre-accident activities since August 8, 2016. The Arbitrator disagrees because the evidence shows the pain experienced by LM is such that she is practically prevented from engaging in substantially all those activities.
Both parties rely on the 2009 Court of Appeal decision of Heath v. Economical Mutual Insurance Company (Heath). The Arbitrator found that the following principles apply to LM’s circumstances:
- A comparison of the claimant's activities and life circumstances pre and post accident.
- All pre-accident activities in which LM ordinarily engaged should be considered with greater weight being assigned to activities the claimant identifies as being important to pre-accident life;
- It is incumbent on a claimant to establish that those changes amounted to her being continuously prevented from engaging in substantially all of her 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";
- The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident.
- In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.
The Arbitrator reviewed the evidence regarding LMs pre-accident activities. The records were fairly consistent with respect to the activities LM engaged in. LM was a stay at home parent. She did not have a driver’s licence, walking everywhere. LM was diagnosed with bi-polar disorder and her medical records indicate that walking in the woods helped her to cope with her depression. The Arbitrator accepted that the activities involved in her role as a housekeeper and mother and her ability to walk daily on a frequent basis are activities that were important to LM’s pre-accident life. LM’s testified that caring for and playing with her three grandchildren was her favourite pastime and that being a grandmother is the most important role that she has. Gore urges the Arbitrator not to consider LM’s activities with her grandchildren because LM failed to mention those activities in her signed statement to Gore or to any assessors or treatment providers and was first mentioned in LM’s affidavit filed as evidence for the hearing. The Arbitrator accepted this activity as being important. LM indicated she has not been able to care for her grandchildren since the accident.
Gore submits that its denial of NEBs is supported by LM’s statement dated April 20, 2016, her reports to Gore’s insurer’s examiners and the records of the Community Care Access Centre and rehab facility.. Gore submits that the documents disclose that she is presently capable of walking, cooking, housekeeping and caring for her grandchildren. Although LM reported to all the assessors that she had partially returned to cooking, she was cooking frozen or canned food rather than fresh food due to her physical limitations. The Arbitrator found LM cannot be said to be engaging in her pre-accident ordinary cooking activities given the reduction in the quality of the food and that it would take her all day to cook. Gore also relies on LM’s statement in April 2016 that she was going to the grocery store. However, she was not going alone and there is no evidence to counter LM’s statement that she was unable to grocery shop unaided.
LM also reported to her orthopaedic surgeon that she is independent with personal care tasks. But she requires help in the shower and to do her hair. The Arbitrator accepted these observations are relevant because they address LM’s ability to engage in activities that comprised a large portion of LM’s life – being a stay at home parent and the primary housekeeper.
The Arbitrator accepted that LM partially returned to a number of activities but was not persuaded by Gore’s argument that the partial return to half of LM’s housekeeping activities means she is truly engaging in those activities. LM’s evidence is that she is afraid to engage in a number of activities. Gore submits that LM’s subjective fear or belief is not the correct test for entitlement. LM submits that Gore has not provided any authority for its submission. The Arbitrator found these fears were based on the facts that her grip was not secure any longer and that her leg would suddenly pronate. This made holding onto her grandchildren while walking or bathing them securely difficult and walking safely could be dangerous.
The Arbitrator accepted LM’s evidence that prior to the accident she walked at least three hours per day, which is more than one third of an 8-hour work day and meets the definition of frequent. Given the importance to LM of her ability to walk, the limitation in LM’s inability to walk more than one to one and a half hours a day at slower speeds (and, accordingly, less distance) is a significant and substantial limitation that, together with the reduction in the quality of her ability, equates to a complete inability.
On the basis of the evidence submitted the Arbitrator accepted LM submission that the potential for future deterioration of her functional abilities should be considered.
On the basis of the evidence the Arbitrator found that LM has on a balance of probabilities established that, as a result of her accident injuries, she is continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. This means that she has established that she still has a complete inability to carry on a normal life as a result of the accident.