April 23, 2018

Accident Benefits Updates: LAT Applies Heath Test- Orders Non-Earner Benefits (NEB) for Chronic Pain

When you apply for accident benefits coverage after a car accident, you are required to elect one of: Income Replacement Benefits (IRB), Caregiver Benefits, or Non-Earner Benefits (NEB).  Of the three, NEBs have the most challenging criteria to meet. NEBs only kick in after six months AND have the highest threshold: the claimant must sustain an impairment as a result of an accident and suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

 

A “complete inability to carry on a normal life” is further explained in the Statutory Accident Benefits Schedule:

…a person suffers a complete inability to carry on a normal life as a result of an accident 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.

Through numerous arbitration hearings at FSCO, the regulator formerly in charge of accident benefits disputes, “substantially all” has come to mean, “more than most, a goodly number or a majority of the pre-accident activities”.

The NEB test is difficult to meet under any circumstances, but particularly in claims where the applicant has suffered soft-tissue injuries or psychological impairment.  Where pain or psychological limitations form the basis of the claim, insurers have generally denied NEBs across the board and forced claimants to challenge the denial at a hearing.

Recently, in 16-003195 v State Farm Insurance Company, an unnamed applicant sought NEBs from her insurer, State Farm following a serious car accident.  The applicant was a 31-year old homemaker with 2 children, aged 5 and 2. The younger child was autistic and required supervision for his safety.  As a result of the accident, she suffered a severe pelvic fracture, broken ribs, a broken right clavicle and lung trauma. After extensive rehabilitation, she continued to experience chronic right hip and pelvic pain.  She was diagnosed with PTSD and an Adjustment Disorder which persisted until the hearing.

State Farm denied the NEB application, claiming that the applicant had not suffered a complete inability to carry on a normal life.  The evidence showed that she had resumed many of her pre-accident activities, including caring for her children.

At the hearing before the Licence Appeal Tribunal (LAT), the adjudicator, Member Paluch held that the applicant met the NEB test and was entitled to receive the benefit.  This result is well-reasoned and very encouraging for injured claimants.

The key issues in this claim revolved around the degree to which the applicant was capable of participating in her pre-accident “normal” life.  The evidence did support State Farm’s contention that she had resumed many of her daily activities.

Member Paluch reviewed the Court of Appeal’s decision in Heath v. Economical which set out the principles to be applied in considering the NEB test.  As a starting point, the Court had emphasized that it is a comparative exercise between pre- and post-accident activities.  Member Paluch summarized the Heath principles:

The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

  • All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.
  • The applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
  • “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.
  • If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

It was agreed that the four primary aspects of the applicant’s pre-accident normal life were: caring for her children, maintaining the family home, caring for her self, and maintaining a positive relationship with her common law spouse.  It was accepted that the first two were most important.

The applicant gave evidence on her own behalf.  She also produced her family physician, treating psychotherapist and psychologist.  State Farm called its Orthopedic and Psychological assessors and OT, who had performed assessments in support of the NEB denial.  

The applicant’s evidence, and that of her family physician, showed that prior to the accident, she was managing all four areas of her life well, despite a history of addiction.  She had made significant lasting progress with her recovery and had enjoyed an extended period of stability. At the time of the accident, there was no evidence of PTSD or other psychological issues.  

Despite reaching maximum medical recovery orthopedically, the applicant continued to experience ongoing daily pain, loss of mobility, fatigue and psychological issues which limited her in all areas. For example, although she could take her children to the park, she was unable to let her son play because she could no longer chase him down when he frequently ran off.  Overall, the applicant presented as “going through the motions” like a zombie rather than engaging in her daily activities.

Member Paluch was impressed with the applicant’s credibility and accepted her evidence as reported. As well, he accepted the family physician’s evidence because he was the only witness that could adequately describe the applicant’s pre-accident life with any authority.  

On the other hand, Member Paluch was not impressed by State Farm’s witnesses.  He found that none of them had given serious attention to the Heath principles or had gathered sufficient information to comment in a meaningful way on the applicant’s pre-accident “normal” life.  The assessments offered “snapshots” of the claimant’s current function from a limited perspective. As a result, the member failed to see how any of these witnesses could be granted much weight.  

In particular, he dismissed the evidence offered by Dr. Fielden, the orthopedic assessor.  Dr. Fielden had performed a ten-minute physical examination and concluded that there was no orthopedic reason why the applicant could not return to work (irrelevant to the NEB qualification).  In his testimony, Dr. Fielden flippantly dismissed pain as a contributing factor, despite clear evidence that pain was a major component of the applicant’s ongoing impairment.  

Member Paluch applied each of the Heath principles to the applicant’s evidence and concluded that she did suffer a complete inability to carry on a normal life.  

The decision is important because it takes a firm stand in support of the Heath principles as determinative of NEB entitlement.  In future LAT cases, insurers will be forced to address these principles in their evidence rather than simply submitting “snapshot” assessments.

At Campisi LLP, we are experts in accident benefits law, and practice according to the philosophy: “Clients first, excellence always.”  If you or a loved one have been seriously injured and need to discuss entitlement to Non-Earner or other benefits, please put us to work for you.

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