Painful symptoms alone not sufficient to claim non-earner benefits: Ontario court

Painful symptoms that interfere with a person’s post-accident activities are not sufficient to entitle claimants to non-earner benefits — particularly in circumstances when there is a pre-existing medical condition, Ontario’s arbitrator has ruled.  
In Jasmin Mangallon and TTC Insurance Company Limited, the plaintiff, Jasmin Mangallon, claimed a non-earner benefit after the rear doors of a Toronto Transit Commission (TTC) bus closed on her while she was attempting to board.
Mangallon argued that as a result of the injury symptoms she sustained — i.e. headaches, dizziness, whole body pain and depression — she experienced a significant deterioration in her ability to live a normal life. This, she claimed, qualified her for a weekly non-earner benefit under Ontario’s auto insurance legislation.
The TTC vigorously disputed the claim, arguing that the incident was a minor one and that Mangallon’s post-accident impairments pre-dated the accident. The TTC said Mangallon’s symptoms were due instead to longstanding and serious heart disease, insulin-dependent diabetes and depression.
The Financial Services Commission of Ontario (FSCO) reiterated the test to qualify for a non-earner benefit is “stringent.”
“As stated in the leading decision of the Ontario Court of Appeal in Heath, where pain is the primary factor that allegedly prevents the insured from engaging in his or her former activities, as Mrs. Mangallon maintains is the case here, ‘the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities,'” FSCO arbitrator Susan Sapin wrote in her decision. “Accident-related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient for a person to qualify for a non-earner benefit under the strict test imposed by [Ontario’s laws governing auto insurance], even though it might entitle a person to damages for pain and suffering in a tort action.”
In the end, FSCO found, “factors other than the TTC bus incident more likely account for some of her post-accident symptoms…Pre-accident medical records could have helped clarify and explain pre- and post-accident conditions that could be significant causes of post-accident pain symptoms, but none were provided.”