May 15, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Aviva LAT 16-001985/AABS
Date of Decision: March 31, 2017
Heard Before: Adjudicator Cynthia Pay
Entitlement to Benefits: Pre-existing condition not worsened by accient; no more benefits; MIG cap stands; NEBs
The applicant was involved in an car accident on October 20, 2014 and sought benefits pursuant to the Schedule. He applied for NEBs and funding for examinations and treatment, including a chronic pain program and psychological counselling. Aviva paid non-earner benefits for 13 weeks, but on the basis of IEs later took the position that the applicant did not meet the test for non-earner benefits, and ended the benefit.
The treatment plans were initially denied by Aviva on the basis that the applicant’s injuries were minor and fell within the MIG cap and that he had exhausted the $3500 available for treatment. Aviva later conceded that the applicant’s injuries were not minor, but maintained the denial of the treatment plans on the basis that they were not reasonable and necessary. The applicant submitted an Application to the LAT regarding his entitlement to these benefits. The Tribunal scheduled an in-person hearing to determine his eligibility.
- Is the applicant entitled to non-earner benefits at the rate of $185.00 per week for the period from July 20, 2015 and ongoing?
- Is the applicant entitled to receive a medical benefit in the amount of $4,272.14 for psychological services recommended?
- Is the applicant entitled to receive a medical benefit in the amount of $13,273.54 for a chronic pain program?
- Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,260.00 for a chronic pain assessment?
- Is the applicant entitled to interest on any overdue payment of benefits?
- The applicant has not proved that he meets the test for non-earner benefits.
- The applicant is entitled to the treatment plan for psychological services in the amount of $4,272.14.
- The applicant is not entitled to the treatment plan for a chronic pain program in the amount of $13,273.54.
- The applicant is not entitled to the cost of an examination for a chronic pain assessment in the amount of $2,260.
- The applicant is entitled to interest on the overdue payment of the treatment plan for psychological services.
The applicant applied for non-earner benefits by way of two OCF-3 Disability Certificates. The first was dated October 22, 2014, which was during the 26-week waiting period for non-earner benefits. The chiropractor checked “yes” to the box regarding whether the applicant met the test for non-earner benefits. A second OCF-3 Disability Certificate was completed was also supportive of the applicant’s eligibility for non-earner benefits. The same injuries were listed as on the initial form.
The applicant has a complicated and unfortunate medical history. He suffered workplace injuries resulting in knee and lower back issues in 2007 and 2008, and had been in a previous motor vehicle accident in 2010. He has been seeing a psychiatrist since 2012, and he supports himself on the Ontario Disability Support Program.
Aviva found the applicant to be eligible for non-earner benefits and paid these benefits from April 20 to July 19, 2015. However, after reviewing the IE from an orthopaedic surgeon, a psychologist, and an OT Aviva determined that the applicant did not meet the test for non-earner benefits. The applicant has disputed this decision in his application and claims that he does meet the test for non-earner benefits.
The Adjudicator reviewed the law in the case, the evidence and made the following determinations.
The NEB test is clearly stated in the SABS. Based on the evidence presented the Adjudicator ruled that the applicant did not meet the burden of proving his eligibility on the balance of probabilities. It appears that many of his health conditions and limitations pre-date the accident. He has not provided sufficient evidence to prove that his restrictions were caused by the accident.
A review of case law including the case of Heath v Economical Mutual Insurance Company that it is not sufficient for an applicant to show that there were changes in his or her post-accident life, but that the changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities; that “engaging in” must be interpreted from a qualitative perspective; and if pain was a factor preventing the applicant from engaging in former activities, it must practically prevent the applicant from engaging in these activities.
The Adjudicator found that the description of the applicant’s pre-accident activity level in the WSIAT decision to be very similar to the account of his post-accident activity level as outlined in his affidavit, testimony and chronic pain and psychological assessments. Before the accident, he suffered from headaches and low back, neck and knee pain. He was unable to cook, do housework, socialize or go to church. After the accident, he was suffered headaches and back and knee pain, and is unable to cook, do housework, socialize or go to church. Even though he testified that he has gotten worse as a result of the accident, it does not appear that his ability to engage in activities has changed much.
Aviva also pointed to pre-accident medical records that list some of the medical issues that the applicant claims were caused by the accident. The pre-accident records suggest that at least the conditions of chronic pain syndrome, depression, anxiety and poor libido were not caused by the accident.
Aviva further noted that because chronic pain syndrome is not listed in the outline of the applicant’s pre-accident medical history provided in the chronic pain and psychological assessment reports, it appears that some medical experts were not aware that the applicant had been diagnosed with chronic pain syndrome before the accident. At any rate, the assessors did not address the fact that this was a pre-existing condition in their report. The Adjudicator determined that this puts their assessment of the applicant’s accident-related injuries into question.
On review of the facts and evidence the Adjudicator determined that there was not sufficient evidence to find that the applicant has suffered a complete inability to carry on a normal life as a result of the accident. The evidence presented by the applicant in his affidavit and testimony regarding his pre- and post-accident activities to be somewhat sparse and lacking in detail. Further, based on the WSIAT decision and pre-accident medical records, it appears that many of the applicant’s medical conditions and restrictions pre-date the accident, and that he now suffers from many of the same limitations that he experienced before the accident. This is not to say that that these pre-existing conditions were not exacerbated by the accident, but this possibility was not clearly addressed by the applicant’s assessors.
Based on the evidence it is not clear that the applicant suffers from a complete inability to carry on a normal life as a result of the accident. There is no clear picture of how the applicant’s ability to engage in his pre-accident activities has changed, and the Adjudicator was therefore unable to find in his favour.