October 19, 2013, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Heard before: Eban Bayefsky
Decision date: September 18, 2013
Theodore Galarneau was injured in a car accident on November 27, 1999 at the age of 9. He applied for and received statutory accident benefits (SABs), but was denied non earner benefits (NEBs) when he turned 16. Mr. Galarneau applied for arbitration to FSCO. The issues in the hearing were:
Is Mr. Galarneau entitled to receive a non-earner benefit, from November 30, 2005, onward, at a rate of $320 per week?
Mr. Galarneau claims that at the time of the accident he was an elementary school student and that as a result of the accident he suffered a “complete inability to carry on a normal life”. He claimed NEBs when he turned 16 notwithstanding that he has not established his substantive entitlement to them. His position was that he should continue to receive benefits on the basis of justice and fairness after having established his entitlement several years ago.
A review of the existing law established that the starting point for assessment of the magnitude of injury is to compare the claimant’s life and activity before and after the accident. This analysis requires more than a snapshot of the time immediately preceding the accident, and including a reasonable period of time which will vary on a case by case basis.
The second step is to establish the magnitude of injuries with regard for the definitions of the Regulation. Care must be taken to establish clearly whether the disabilities meet the criteria of ‘substantially all’ pre-accident activities has been affected to the required degree. The injuries must also meet the threshold of “continuously prevents” meaning that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.” Finally the quality of life must be examined in light of the above definitions. Entitlement to NEBs is established by the first two criteria.
Mr. Galarneau’s own testimony was that he had little recollection of his life before the accident. He had had some trouble at school in grade 2 and received a month long detention. Following that he had been home schooled for two years with his younger sister as his only playmate, then held back a year when he returned to public school.
Mr. Galarneau’s mother testified that prior to the accident he had a robust life and that her son was confident, outgoing, with lots of friends. He played sports and went to school almost every day where he never failed. Upon examination she acknowledged that her son missed 18.5 days of school in grade 1 and 10 days in grade 2. She testifies that the boy had never been physically abusive to others although in a 1992 affidavit for interim custody she deposed that the boy’s father had “taught him to be physically abusive with others”.
Post-accident Mr. Galarneau testified that he had undergone several oral surgeries with more required, and that he suffers from jaw related pain and speech impediments. He also indicated that he has constant back pain that affects his sleep. He noted that since the accident he was picked on at school, and did not do well eventually dropping out of school in grade 10 unable to read. He has held some short term jobs unsuccessfully, but cannot perform lifting due to back pain. He currently has a girlfriend and has tried to upgrade his education without success. He began abusing drugs and alcohol to cope with his pain. He testified that he has temper issues. His girlfriend testified that he is a good father who plays with his children, cooks and vacuums, but he can’t do dishes due to back pain. He comes home from work in pain every day.
Immediately post-accident his mother filed an OCF-12 form indicating that he experienced problems with speech, concentration , anger depression and fear, and that he had low back injuries.
There was no doubt he suffered some physical and psychological injuries. His chewing ability has been impaired due to the injuries he sustained. In 2000 his psychologist indicated that Mr. Galarneau was functioning near grade level but required a “higher level of supervision and attention than other children.” Later in 2001 the psychologist suggested Mr. Galarneau undergo an educational assessment. In 2003 he was assessed by another psychologist who indicated a “history of academic difficulties” which “surface[d] by the Grade 3 level”, was noted to have “abilities…in the Low Average range” when he was 9 years old, and was now “achieving at expected levels with most academic skills, although his achievement level remains below grade level.”
A review of his medical documentation revealed that that Mr. Galarneau has mild psychological difficulties one year post accident that resolved quickly and fully. There was no other record of emergent or ongoing psychological problems in the intervening period. There were no findings or observations of back pain in the medical documents.
In the final analysis by Dr. M psychologist it was concluded that Mr. Galarneau continues to engage in all activities including personal care. He certainly has some difficulties performing heavy physical tasks, and some cognitive activities are problematic for him. He concluded the analysis by stating that Mr. Galarneau’s inability to return to any form of employment is “in part owing to his pain, his limited education, not having a valid driver’s licence and a general shortage of jobs in the region he resides.”
Arbitrator Bayefsky reviewed the testimony and evidence before him and ruled that within 104 weeks Mr. Galarneau’s impairments did not continuously prevent him from engaging in substantially all of his usual pre-accident activities. On that basis the Arbitrator ruled that he is not entitled to non-earner benefits. The Arbitrator also ruled that Mr. Galarneau has not shown a complete inability to carry on normal life upon turning 16. Mr. Galarneau’s academic difficulties and his decision to leave school were ruled to be unrelated to his accident impairments.
On this basis Mr. Galarneau was not entitled to non-earner benefits, a special award or interest.