Children seeking non earner benefits unable to show mental or psychological injury from mom's car accident.
July 26, 2014, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard Before: Arbitrator Jeffrey Rogers
Date of Decision: May 16, 2014
REASONS FOR DECISION
The issues in this hearing are:
Are Marco P and Michael P entitled to payment of a non-earner benefit (NEB)?
Is any party liable to pay the other’s expenses of this arbitration?
Marco P and Michael P are not entitled to payment of an NEB.
The decision on the issue of expenses is reserved, to be determined in accordance with Rule 79 of the Dispute Resolution Practice Code.
Michael and Marco are fraternal twins who were 12 years old when their mother was injured a car accident. They claim their mother’s psychological condition impacted them and caused them psychological or mental injury. They applied for NEBs from TD General. TD General refused to pay. Marco and Michael then applied for arbitration at the Financial Services Commission of Ontario.
To be entitled to payment of an NEB, they must prove that their mother’s injuries caused them to sustain a psychological or mental injury, and that within 104 weeks of the accident they suffered a complete inability to carry on a normal life. NEBs are not payable before age 16 thus they had to prove their complete inability to carry on a normal life persisted on their 16th birthday.
TD General maintained that the brothers are not insured persons because they did not prove their mother suffered a physical injury in the accident. The Arbitrator rejected this argument as TD General only raised the issue for the first time in closing submissions. TD also submitted that the brothers must show their injury resulted from their mother’s physical injuries rather than her psychological condition. The Arbitrator pointed to the schedule and rejected this argument as well. TD further submitted that to the definition of “insured person” the brothers relied on is intended to apply only to persons who witness the accident. The Arbitrator rejected this as well.
The Arbitrator proceeded to examine whether the brothers met the NEB test. They must prove a complete inability to carry on a normal life within 104 weeks of the accident as defined in the schedule, and, and in previous decisions. The Arbitrator noted that because the brothers were children at the time analysis of their lives must assess the effect of the accident related impairments on their potential. There is no question that immediately following the accident the both were impacted as their mother stopped taking care of them. Their mother became volatile and confrontational, and their parents separated. There was no evidence the boys were unable to make or maintain friendships. The bothers’ relationship deteriorated as they each sided with a different parent in the separation. Both Marco and Michael completed Grades 7, 8, 9 and 10 after the accident, but failed grade 11.
Only the family doctor opined that Marco and Michael qualified for NEBs. The doctor diagnosed depression in both brothers in 2010 but checked N/A in the box regarding NEBs on the Disability Certificate. In 2012 the doctor diagnosed substance abuse and social anxiety in Michael and that both brothers suffered a “complete inability to lead a normal life” as of the date of the accident. The doctor confirmed the date symptoms first appeared to be October 29, 2008, which was the “date I was first made aware by him of symptoms.” The doctor chose the date of the accident as the date of the onset of a “complete inability” because she saw the accident as the source of ongoing impairment.
The doctor offered no opinion on whether the brothers sustained a psychological or mental injury within 104 weeks of the accident. The doctor did not do a detailed comparison of his levels of function pre and post-accident, nor whether the changes meant he was continuously prevented from engaging in substantially all of his pre-accident activities. The absence of any opinion that Michael sustained a psychological or mental injury within 104 weeks of the accident precludes a finding that he meets the NEB test.
The Arbitrator therefore, gave no weight to the doctor’s opinion that Marco or Michael met the NEB test.
The Arbitrator found that there were some changes in the applicants’ lives after the accident but the significant aspects of those changes were not caused by any psychological or mental injury they might have suffered. The brothers did not prove they sustained a psychological or mental injury within 104 weeks of the accident nor does the evidence support a determination that the applicants suffered a complete inability to carry on a normal life within 104 weeks of the accident. They are therefore not entitled to the claimed NEBs.
|Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Fractures
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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 toll-free at 1-866-414-4878.
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.