July 15, 2016

A New “Normal”? For non-earner benefits, an insured’s pre-accident life should be viewed broadly

Galloway v Echelon General Insurance, FSCO A13-006130

Dan H. temp head shot

Dan Hynes

Personal Injury Lawyer

 

Background

The applicant, Mrs. Galloway and her common law husband were passionate motorcycle enthusiasts. They live in a small town outside of Ottawa, and during winter months would stay at their second home in Arizona, where they could focus on riding. On March 18, 2010, Mrs. Galloway and her husband were on a road trip with friends in Arizona and were involved in a serious motor vehicle accident.

Her injuries were not disputed by the insurer: she suffered a T12 spinal burst fracture (i.e. a broken back), shattered humerus, fractured wrist, and a shoulder injury. Mrs. Galloway suffered chronic physical pain due to her injuries, and psychological issues due to the accident. She sought non-earner benefits on the basis of catastrophic impairment.

The insurer denied she was catastrophically impaired, as she was able to resume a “normal” life. Non-earner benefits were terminated in May 2011 as Mrs. Galloway was capable of performing all pre-accident self-care. Benefits were briefly re-instated for one year then terminated again because re-assessments found she did not suffer a complete inability to carry on a “normal life”.

Result

Mrs. Galloway was found to be catastrophically impaired by her accident. She was entitled to: non-earner benefits totaling about $29,000, rehabilitation benefits, physiotherapy and 2% interest on overdue benefits.

The definition of “normal” must take into account what the applicant actually normally did before the accident, and not merely be based on a snapshot of activities and mobility.

Referring to the Ontario Court of Appeal’s decision in Heath v Economical, 2009 ONCA 391, the adjudicator found “the difficulty in this case arises because the experts who assessed Mrs. Galloway had in mind the concept of ‘a normal life,’ while the Court of Appeal uses they yardstick of active participation in pre-accident activities.” The adjudicator found Mrs. Galloway suffered from an “inability to engage in substantially all of the pre-accident activities which were most important to her, and which defined her as a person and provided the focal points in her family and social life.”

Implications

Counsel and health professionals should be mindful of the ONCA’s decision in Heath v Economical and how the definition of “normal” in that decision is what should guide medical examinations. Applying the proper starting point pre-accident is crucial to obtaining fair assessments of an insured’s degree of impairment post-accident.

 

If you have questions or comments about this edition of the newsletter, contact Dan Hynes at Legate & Associates: d.hynes@legate.ca