Insured back to pre accident activity level and therefore no Non Earner Benefit payable.

September 01, 2012, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Before: Robert A. Kominar
Date of Decision: July 13, 2012

Issues:

Jill Barnes was injured in motor vehicle accidents on September 12, 2006 and on September 14, 2007. She applied for non-earner accident benefits from the Motor Vehicle Accident Claims Fund ("MVAC Fund"), and from TTC Insurance Company Limited ("TTC"), payable under the Schedule. MVAC Fund and the TTC denied her entitlement to non-earner benefits. The parties were unable to resolve their disputes through mediation, and Ms. Barnes applied for arbitration at the Financial Services Commission of Ontario.

The issues in this hearing are:

  1. Is Ms. Barnes entitled to non-earner benefits from either insurer, and if so in what amount

Result:

  1. Ms. Barnes is not entitled to non-earner benefits.
     

EVIDENCE AND ANALYSIS:

Jill Barnes was involved in two motor vehicle accidents which are the focus of this arbitration. The first accident occurred when Ms. Barnes was backing her motorized scooter out of the back of a TTC Wheel Trans vehicle. It occurred on September 12, 2006. Ms. Barnes was subsequently involved in another accident with an unknown driver whom she says hit her motorized scooter while she was returning home from shopping. This accident occurred on September 14, 2007.

All parties have agreed that Ms. Barnes' claims for non-earner accident benefits arising out of both accidents will be dealt with in this arbitration. 

The parties further agree that the only substantive issue to be dealt with in the arbitration is Ms. Barnes' entitlement to non-earner benefits under the Schedule, the other issues which were identified in the pre-hearing letter having been withdrawn. Ms. Barnes claims entitlement to the non-earner benefit from both TTC and the MVAC Fund.

Factual Background

Ms. Barnes was last employed in approximately 1991. Just before that she suffered some form of work-related injury and, as a result, received worker's compensation benefits for a period of time. Her evidence at the arbitration was that she underwent some surgery after this incident and her mobility began to decline to the point that eventually she was only able to walk very short distances unaided. Within approximately one year after this workplace accident she had to rely on the assistance of a cane and ultimately she was required to use a motorized scooter for her mobility.

For the extended period of time between 1992 and 2006 Ms. Barnes testified that her health status was basically stable. She intermittently received various forms of assistance with cooking, personal care and housekeeping from friends and social workers throughout this period. She also separated from her spouse in 1991. Her mobility restrictions resulted in her beginning to use the Wheel Trans service around 1991 or 1992. She has relied on it ever since.

On September 12, 2006, Ms. Barnes arranged to be picked up by Wheel Trans from an event at Gilda's Club in Toronto. Her evidence was that when she met the transit driver he advised her in a rather gruff fashion that he had not had dinner and was running late. After that he instructed her to manoeuvre her scooter into the bus quickly. Ms. Barnes stated that she advised the driver that she was suffering from a "cracked rib" which originated from a fall she had in her apartment two weeks earlier. 

Ms. Barnes was not happy with the transit ride, as the driver apparently was weaving in and out of traffic and driving much faster than she thought appropriate. Ms. Barnes experienced pain in her recently injured rib area as a result of being jostled during the transit ride.

According to Ms. Barnes' evidence, she was injured while exiting the rear door of the transit vehicle while following the bus driver's directions to her. During this process she testified that she "hit something" near the door edge of the vehicle with the right side of her body. She claims that in this process her lower right rib cage was impacted in some manner and that this event either caused her to suffer new broken ribs, or exacerbated the earlier injuries to what she had previously described as "cracked ribs." Ms. Barnes was unable to explain exactly how the impact with the vehicle took place and how her rib cage came into contact with the vehicle, as she stated that this happened a long while back.

Ms. Barnes went to the hospital the next day and some x-rays were taken. She then attended at her family physician, who advised her to continue to take the pain medication which had been prescribed as a result of the recent fall in her apartment. Ms. Barnes initially thought she had "bruised" ribs but, when the x-rays were sent to her physician, she learned that she had 4 broken ribs. Due to the timing of the fall in her apartment and the TTC accident it is unclear as to whether the breaking of the ribs pre-existed the TTC accident. However, this causality issue is not particularly relevant to this case.

Prior to the TTC accident Ms. Barnes was being treated for a variety of medical conditions such as: Crone's colitis, asthma, inflammations of various sorts, depression, PTSD, and numerous allergies. She had been prescribed medications for these conditions and as well was taking prescribed pain medications for her injured ribs. 

Prior to the TTC accident Ms. Barnes described her daily life as largely consisting of attending various social clubs and community centres. She also participated in various social activities with friends such as dinners and movie nights. She attended from time to time various modes of physical therapy and swimming and also participated in psychological counselling. Ms. Barnes also volunteered from time to time as an advocate for disabled people as she had experience and skills in this area.

The evidence in this arbitration can fairly be summarized as indicating that Ms. Barnes has had a challenging time since her workplace accident in 1991. However, she has adapted to her health concerns and continued to participate in events and activities that were meaningful to her. Her evidence was that she had back surgery after the workplace injury and has been in almost constant pain since. Her explicit evidence was that her back hurt "every day" right up to the date of the TTC accident in 2006. She also testified that she has been treated and prescribed medication and counselling for depression regularly since her back surgery. Compounding these injuries, Ms. Barnes was sexually assaulted in 1991 and thereafter has been treated for ongoing post-traumatic stress related symptoms. Ms. Barnes testified that she has also suffered from panic attacks approximately twice weekly since the sexual assault.

Ms. Barnes received various modalities of treatment for her physical symptoms and she stated that they helped intermittently. The medications which she took for pain at times did not work and were adjusted by her physician. Her evidence was that psychological symptoms did not improve and that after the TTC accident her rib injuries prevented her from sleeping and this lack of rest in turn worsened her depression and social isolation. Her appetite became variable, some days she would eat more than normal and on other days less. Ms. Barnes had been a user of distress phone lines prior to the TTC accident, but she stated that she would call in for support more often afterwards due to her heightened state of anxiety.

As noted above, Ms. Barnes had been regularly using the meals on wheels service prior to the TTC accident and this continued afterwards. She stated that with the limited housekeeping assistance that she was being offered, she started doing things at home, but at a slower pace and less frequently than she had before the workplace and TTC accidents. Her evidence was that she would attempt to get friends to accompany her while shopping, but that she was able to go herself when she could not arrange for company.

Ms. Barnes stated that her memory became problematic after the TTC accident and that she started to use lists to help her remember to pay bills on time.

Approximately nine months after the TTC accident, Ms. Barnes testified that she returned to attending her usual social engagements at the community centres and social groups. As her ribs gradually healed the pain which she experienced on a daily basis returned to what she described as pre-accident levels. It is unclear from her evidence whether she meant pre-work injury levels or pre-TTC accident levels. However, not much turns on that in this particular case.

The second accident happened on September 14, 2007. On this occasion, Ms. Barnes testified that she was returning home from getting groceries on her motor scooter. A driver of a van hit the left side of her scooter. The impact caused the seat of her scooter to unlock and spin around, thus twisting her body as she was seated at the time. The driver stopped and checked whether she was all right. She told him that she was and he then left without Ms. Barnes obtaining any information about the driver or his vehicle. She stated that about an hour after she returned home, she started to experience pain in her neck, shoulder and back.

Ms. Barnes testified that she reported this incident to the police but that they did not respond for approximately five days. As she did in the TTC accident, she attended at her family physician who, once again, told her to keep taking the pain medications which she had been taking all along. Nothing new was prescribed. No new therapy was recommended.

Ms. Barnes stated that she experienced an increase in her anxiety, depression, fibromyalgia and headaches after the second accident, which she said was due to her frustration with the way the police were responding to her case. Her evidence was specifically that, although she thought the accident contributed something to these worsening symptoms, it was more likely that her frustration with law enforcement response to her complaints was the real source.

Although she stated that her physical pain increased for a few months after the second motor vehicle accident, she returned to all other social and community activities within approximately six months. She found it difficult at times to read so she listened to audio books as an alternative. On cross-examination, she acknowledged that she often listened to audio books before either of the motor vehicle accidents.

ANALYSIS

It is safe to say that entitlement to the non-earner benefit requires a claimant to satisfy one of the most stringent tests in the Schedule. This has been recently confirmed by the Ontario Court of Appeal in Heath v. Economical (2009 ONCA 391). To be successful, Ms. Barnes must prove, pursuant to section 12 of the Schedule, that on the balance of probabilities, as a result of one or both of these accidents, she suffered a "complete inability to carry on a normal life." The complete inability test is intended by the legislature to be a challenging one to meet, and this can be seen when one notes that most of the other tests in the Schedule require only "substantial inability" at least for some period of time for initial entitlement. In addition, there is a 26-week waiting period after the onset of the complete inability prior to an insurer being required to pay a non-earner benefit to a claimant.

Notwithstanding that the non-earner test sets a high bar for entitlement, it is even more challenging to deal with in situations such as Ms. Barnes finds herself in. When individuals whose health and functionality have already been compromised before an automobile accident apply for a non-earner benefit, one must compare their "normal life" before the automobile accident with their normal life afterwards. The difficulty is that the "normal life" of such an individual may already include a decreased level of functionality, mobility, etc. In some cases even a restriction on one aspect of life activity may be enough to meet the "complete inability" test due to the qualitative and personal importance of that activity to the specific person. For example, if one had no sight before an accident and then lost one's hearing in the accident, the loss of that additional sense may have very dramatic effects on one's ability to interact with the world. Yet, if an otherwise healthy individual lost his or her hearing in an accident, that alone, may not be enough to get over the hurdle of meeting the "complete inability" test. That being said, the Ontario Court of Appeal in Heath v. Economical has confirmed that the test is subjective and each case has to be evaluated on its own facts.

In assessing Ms. Barnes' claims, the Arbitrator found her life after both of these accidents, while impacted, was not so severely changed that she can meet the statutory test for non-earner benefits. Complete inability is defined as being "continuously unable to engage in substantially all of the activities which the person participated in prior to the accident."

The Arbitrator found that Ms. Barnes' evidence at the hearing confirms that she was not continuously unable to engage in substantially all of her pre-accident activities. The Arbitrator accepted her evidence that she was in pain from her rib injuries. As noted above the causality issue as to how these injuries came about is not relevant to the Arbitrator’s decision in this case. However, the Arbitrator noted and agreed with counsel for both insurers that it is difficult to understand the mechanism of the injuries which Ms. Barnes described for both of these accidents. The essence of the decision is that, notwithstanding these two accidents, Ms. Barnes continued to do a significant amount of what she did before the accident. 

Ms. Barnes' mobility did not change much after either accident. She continued to drive a motorized scooter to transport herself. She was using this mode of transportation for a long time before these accidents. Clearly she was back to driving the scooter and going shopping between the two accidents or else the second accident could not have occurred. The Arbitrator accepted that she was experiencing some rib pain, but she testified that she was experiencing that before the accident and had been prescribed pain medication for the fall in her apartment. It is of note that her physician advised her to simply carry on taking that medication. The reasonable inference from this is that the pain was about the same before and after and, as Ms. Barnes testified to, once the ribs started to heal the pain began to dissipate. Although pain can result in one being so debilitated from it that function is seriously affected, this is not the evidence in this hearing. Ms. Barnes has been living with "daily pain" for many, many years. Through that time, there is no evidence that pain stopped her from engaging in her usual activities. Given that she did not testify that either of these accidents increased her physical pain in any significant degree, the Arbitrator found that the pain cannot be enough of a difference in her life to overcome the burden of proof for the non-earner benefit.

Ms. Barnes had been relying on various social services and friends to assist her with cooking and housekeeping before the accidents. Her evidence was that she did not cook much prior to the accidents, but for a while after the accidents, she was able to make simple meals like sandwiches. However, Ms. Barnes also stated that she had been relying on the meals on wheels service for a long time to provide her basic nutrition. Although the Arbitrator accepted that Ms. Barnes may have had some difficulty in preparing food due to her rib pain, in the circumstances the Arbitrator also found that this likely did not impact her life significantly due to her pre-existent reliance on meals on wheels.

Ms. Barnes' daily life prior to the accidents involved, according to her evidence, her participating in various support groups and community organizations. These groups provided her with social contact and also support for dealing with issues related to disability, access to services, etc. They also provided her with some recreational opportunities, such as movie nights. Ms. Barnes' evidence was that after the TTC accident she slowed down her attendance at these events. Part of this resulted from her decision that some of the content of the sessions were not things she was interested in and part of it related to her feeling too tired to attend at times. Sometimes she could not arrange for friends to attend with her, so she did not go. The Arbitrator found that the reasonable inference to draw from this evidence is that Ms. Barnes reduced her participation in these events for a few months and then she resumed them. As these were intermittent events, the Arbitrator found that she was not "continuously" precluded from participating in them due to either accident.

Ms. Barnes noted that she had significant psychological issues to deal with before the accidents and that they continued after both accidents. The Arbitrator found that there was no evidence that her psychological condition significantly changed as a direct or indirect result of these accidents. Ms. Barnes' own evidence was that she believed that her psychological distress after the second accident resulted from her frustration with the police response. 

Ms. Barnes testified that she experienced memory problems after the accidents and had to rely on making lists for herself to make sure bills were paid. The Arbitrator found that although the memory decline may be in some way associated with the accident, albeit there was no evidence presented to this effect in the hearing, but that it was not of such significant consequence that it could not be addressed by the simple action of making reminder notes. Although she may not have needed to leave herself notes before the accidents, the Arbitrator did not find that reliance on notes, particularly during periods of time when one is experiencing heightened physical pain or psychological stress, a radical change in life activity. The Arbitrator noted the fact that many people rely on reminder notes in life.

In essence, due to Ms. Barnes' health and functionality status before these accidents, the Arbitrator’s finding is that she continued to live pretty much the same life as she had prior to them. Clearly her life was impacted by physical pain and some psychological distress. But neither of these factors so impacted her life activities to amount to a complete inability to live a normal life. The Arbitrator’s finding is that Ms. Barnes continued to live her normal life while experiencing pain and some functional limitation for a few months. By the time six months had elapsed after the earliest date for entitlement, Ms. Barnes had returned to many of her normal daily pursuits. There is no evidence that the second accident caused her any significant, additional physical limitations and her own evidence was that the psychological distress she suffered was more likely related to her interaction with the police than the collision itself.

In Cook and Pilot Insurance Company, (FSCO A03-001085, May 9, 2005), the Arbitrator decided a case that is similar in principle. Mrs. Cook claimed non-earner benefits after an accident, but her evidence supported the conclusion that she continued to live basically the same way as she did prior to the accident, although she experienced some pain for a period of time and also had to use adaptive strategies such as standing rather than sitting during religious services to continue to function. When the totality of her living circumstances were assessed in a holistic way it was not reasonable to conclude that Mrs. Cook was completely unable to live a normal life. The Arbitrator found in this case the same; Ms. Barnes was not completely unable to live a normal life after either of these accidents. Therefore, she is not entitled to non-earner benefits from either the Motor Vehicle Accident Claims Fund or the TTC Insurance Company Limited.

 

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Disability Insurance, Pain and Suffering, Physical Therapy, Slip and Fall Injury, Treatment, Truck Accidents

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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.

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