March 20, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Newland and Tanaka
Date of Decision: January 11, 2018
Heard Before: Adjudicator Lynda Tanaka
NEBs: Applicant demonstrates pain and injury to knee; applicant’s testimony inconsistent and unreliable due to addiction; applicant fails to make case that he suffers a complete inability to carry on a normal life
Mr. Newland was injured when he was hit by a car while he was walking across a road at an intersection on October 25, 2013. He suffered various injuries to both the left and right sides of his body when he fell to the ground, but the most serious injury was to his right knee. He sought accident benefits from Aviva, however when benefits were denied Mr. Newland applied for arbitration to the FSCO.
- Is Mr. Newland entitled to receive a NEBs of $185.00 per week commencing April 25, 2014 to date and ongoing?
- Is Mr. Newland entitled to interest for overdue payment of benefits?
- Mr. Newland is not entitled to receive a NEBs of $185.00 per week commencing April 25, 2014 to date and ongoing.
- Mr. Newland is not entitled to interest for overdue payment of the NEBss in dispute.
The Schedule provides for the payment of NEBss under s. 12 (1) 2., where, “The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident…” and Under s. 12(4) of the Schedule, a person suffers a complete inability to carry on a normal life “if, and only 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 benefit is not payable for the first 26 weeks after the onset of the complete inability to carry on a normal life.
Both parties rely on the decision of the Ontario Court of Appeal Heath v. Economical Mutual Insurance Co. in which the Court sets out general principles as being part of a proper approach to the test for NEBss. The Court held that the starting point for the analysis is to compare Mr. Newland’s activities and life circumstances before the accident to his activities and life circumstances after the accident. It is not sufficient for Mr. Newland to demonstrate that there were changes in his post-accident life, but rather to establish that those changes amounted to his being continuously prevented from engaging in substantially all of his pre-accident activities. It is Mr. Newland who must prove the incapacity of the requisite nature, extent or degree which is and remains uninterrupted.
EVIDENCE AND ANALYSIS:
In determining Mr. Newland’s entitlement to the benefit claimed, there are two important events: a motor vehicle accident at work on May 10, 2012 and the 2013 accident. Mr. Newland was injured in his right knee in both accidents.
Mr. Newland and his mother testified to his life prior to both accidents and after each of them. In addition, there is a three-volume document brief that was marked as Exhibit 1 which contained medical reports, correspondence between Mr. Newland and Aviva, clinical notes and records of several hospitals and the WSIB and Accident Benefits File from the 2012 accident. Mr. Newland provided statements in which he described both his pre-accident life and post-accident.
Prior to the 2012 accident Mr. Newland was an active, jovial person, close to his mother. He lived with his family and helped her with household chores and the mother/son activities included attending church, watching TV together and playing board games together. There was an easy habit of communication between them. He played basketball and tennis for recreation. He drove his mother’s car to work. Their recollection was that he lived with his family which also included his father and siblings. His mother testified that before the 2012 accident she thought he would become a comedian because he was always joking around and laughing. He testified that he wanted to become a police officer but with his limited education he could not. He took a security guard course and became licensed as a security guard.
He is the father of a child born in 2011. He testified that he left school without completing his high school graduation requirements to support his son. His son lived with the boy’s mother and her family. Mr. Newland had access visits to his son who visited with him at his home. He testified that he spent time two or three times a week with his son, and his mother testified that she was very proud of him as he had been a good father to his child and he seemed able to relate well to his son. At the time of the 2012 accident, he was seeing his child regularly, had an active social life and was physically strong.
Despite his lack of education, he was able to secure work and his income tax assessments from 2008 to 2015 indicate he was consistently increasing his income until 2012 when the 2012 accident occurred. Thereafter, his income dramatically dropped, though he was able to work from time to time. He was late in filing tax returns.
In the 2012 accident, the work vehicle in which Mr. Newland was a passenger was struck twice. In addition to other injuries, his right knee was badly injured requiring over 8 months of physical treatment followed by surgery to remove the meniscus. The posterior cruciate ligament was badly torn and he was not able to return to work until after the surgery. He testified that he tried to go back to the job he had had prior to the accident but he could not keep up with the job requirements because his knee gave out.
After the 2012 accident, Mr. Newland was unable to return to his recreational activities. He went to physiotherapy. He attended church with his mother and played board games with her, and it appears that he was still maintaining his relationship with his son (though there apparently were stresses in the relationship with the child’s mother over support). His injuries limited the activities he could do with the child because of his right knee. He suffered pain and had limited range of motion in his leg. His father drove him to and from his physiotherapy appointments and there is information in the file that he also cooked for him. Mr. Newland and his mother both confirmed that his knee was getting better over the months following the surgery. He testified that he was able to start jogging, albeit for short periods, in August 2013 and his mother testified that he was starting to send out job applications.
Hospital records from his January 2013 knee surgery contained a note that his physiotherapist had told him not to work. The plan for treatment of the knee at that time was to do the surgery on the torn meniscus and manage the PCL injury with physiotherapy until Mr. Newland had recovered from the surgery on the meniscus and had sufficient time to strengthen his leg. Until the surgery, he had work restrictions for heavy lifting/carrying, pushing, pulling, kneeling, crouching, low level lifting and prolonged standing and walking, and for stairs and uneven ground. Following surgery the knee had excellent range of motion despite some residual swelling. The work restrictions listed above were recommended for another 4 weeks. A follow up appointment was to be scheduled in three months as there was still the PCL tear to deal with.
Mr. Newland testified that he had started to feel more like himself in August 2013 but the 2013 accident in which his right knee was reinjured caused a significant setback. Mr. Newland testified that within days of the 2013 accident he started using crack cocaine and that his slide into addiction came swiftly after that point. Mr. Newland’s mother testified that his attitude after the 2013 accident was totally changed compared to his response after the 2012 accident. He became depressed, isolated and distant and easily irritated and angered. She could not understand the change and tried to encourage him, which only led to arguments with him.
There was restricted access to his son and therefore a disruption in that relationship that is now being repaired. A few months after the accident (there are varying recollections of the date) his mother asked him to leave the family home because of his disrespectful attitude towards her. He testified that he could recall little of his life in the period prior to the accident except that he was starting to get things back in place in August. He recalled being badly discouraged when his knee hurt so badly again. Even though he had had a good outcome with the surgery in 2013, he found cocaine was easily available and made him feel so much better.
In response to his application for accident benefits, Aviva arranged an IE that concluded that Mr. Newland’s injuries fell within MIG because there was only Mr. Newland’s “subjective report” of a pre-existing medical condition that would prevent him from achieving maximal recovery under the $3500 MIG structure.
Dr. G found there was no compelling evidence of Mr. Newland’s knee injury or the outstanding PCL tear. He acknowledged that what he saw in his assessment was in stark and negative contrast to what the Sunnybrook orthopaedic surgeon observed in the follow-up appointment a couple of weeks after the surgery. He subsequently re-examined Mr. Newland noting pre- and post-accident function, pain and general condition. He also noted limited flexion of the knee. Under questioning he admitted he excluded certain realms of function such as Mr. Newland’s relationship with his son. His opinion provided in his assessment was that Mr. Newland was not suffering from a complete inability to carry on a normal life and recommended that in returning to his normal activities of daily life Mr. Newland should be restricted from prolonged standing and walking, traversing stairs, running and carrying heavy objects. He recommended reassessment in the future based on imaging.
Aviva arranged for insurer’s independent examinations in July of 2014. An In-Home Assessment was conducted by occupational therapist at the family home where Mr. Newland was allowing this conditional visit.
It was not until the spring of 2015 that Dr. G received the clinical notes and records concerning the meniscus repair and the post-operative report. He refused to change his opinion expressed in his July 15, 2015 assessment that Mr. Newland did not suffer a complete inability to carry on a normal life. Dr. G reviewed records from Kingston General Hospital and from a physiotherapy clinic, including notes in which an ER physician made a referral for possible bursitis and management of PCL injury. Dr. G again refused to change his assessment.
A review of the OT report on function opined Mr. Newland demonstrated a poor or inconsistent effort throughout the assessment. His poor or inconsistent effort was noted because he declined to attempt formal kneeling and squatting, he reported pain in his right knee under formal ROM testing, and he declined to demonstrate various personal care and household tasks. She concluded that, given Mr. Newland’s demonstrated abilities as well as inconsistencies throughout the assessment, he had the physical capabilities to perform all pre-accident activities in a safe and independent manner. The OT noted that Mr. Newland rated his knee pain as constant, 9 out of 10, and aggravated by walking, bending, twisting and putting pressure on it. She observed him stand/walk for three minutes continuously and for a total of eight minutes intermittently throughout the assessment and to weight shift to his left leg. She observed his limp.
This OT report from the assessment July 4, 2014, reports full range of motion in the right knee and that is totally contrary to everything that all doctors have reported, including Dr. G. It was Mr. Newland‘s inconsistencies in performance that seem to get the most attention in this report with respect to each of the activities of daily living she assessed.
The entitlement to the NEBs is provided in Section 12 of the Schedule with the relevant definitions provided in section 3 of the Schedule. Mr. Newland has the burden of proof on the balance of probabilities to show his entitlement to the benefit. The onus is on Mr. Newland to prove his case and not on Aviva to prove the contrary. There are serious issues with respect to Mr. Newland’s evidence. He had become addicted to crack cocaine and gotten into trouble with the law as a result. His mother was acting as his surety at the time of the hearing and he had to live with her.
The Adjudicator noted that claim is for NEBs arising from impairments following the 2013 accident. The reports that have been filed by Aviva deal with more benefits than this one claim but this decision relates only to that claim. The Adjudicator was satisfied on the evidence that Mr. Newland has suffered pain and impairments especially with his right knee as a result of the 2013 accident and that he provided compelling evidence of a pre-existing medical condition arising from the damage sustained by his right knee in the 2012 accident. However, the Adjudicator was unable to conclude on the evidence what activities of daily living were the most important to him in either the period prior to the 2013 accident or prior to the 2012 accident. Mr. Newland has also not provided sufficient evidence to support my finding that that his functioning after the 2013 accident was less than what he had after the 2012 accident and prior to the pre-2013 accident. There are too many inconsistencies in his evidence. On that basis the claim is dismissed.