LeBlanc v. Prudential Insurance Company of America

LeBlanc v. Prudential Insurance Company of America Court Supreme Court Date 2001-06-19 Citation 2001 NSSC 86 Docket SH 128224 Judge/Registrar/Adjudicator Nunn, D. Merlin (Honourable Justice) Document Type Decision Relations Library Sheet - LeBlanc v. Prudential Insurance Company of America - 2001 NSSC 86 - 2001-06-19 - Library Sheet Decision Content Date: 20010619 Docket: S.H.128224 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as LeBlanc v. Prudential Insurance Company of America, 2001 NSSC 86] BETWEEN: JEANIE LEBLANC PLAINTIFF - and - THE PRUDENTIAL INSURANCE COMPANY OF AMERICA __________________________________________________________________ D E C I S I O N __________________________________________________________________ HEARD: at Halifax, Nova Scotia, before The Honourable Justice D. Merlin Nunn on May 22 and 23, 2001 DECISION: June 19, 2001 COUNSEL: Jeannie LeBlanc, self-represented John T. Rafferty, Q.C., on behalf of the defendant NUNN, J.: [1] In this action the plaintiff claims the proceeds of a mortgage insurance policy for the balance outstanding on her house mortgage with the Royal Bank of Canada as of January 20, 1993, which balance was $48,345.00 consisting of $47,586.00 principal and $759.00 pre-payment penalty. The policy itself was a general policy between the Royal Bank and Prudential by means of which the Royal Bank was able to sell mortgage insurance to anyone borrowing under a mortgage from the Royal Bank. [2] There is no question that the policy existed or that the plaintiff was covered by it. [3] Over the period of time involved here the plaintiff was represented, at different times, by two legal counsel. This action was commenced on May 24, 1996 by Michael LeBlanc as the plaintiff's solicitor. Ultimately this case was set down for trial on August 21 and 22, 2000 but on August 17 an Order was granted permitting Michael LeBlanc to withdraw as counsel. His affidavit in support of his application, filed also in this action as Exhibit 8, indicates that between October 28, 1999 and May 31, 2000 despite numerous letters and messages concerning meetings with her, attendances at medical appointments and obtaining medical reports, the plaintiff made no response. [4] At a pre-trial conference conducted by Justice Hamilton of this Court held August 18 with the plaintiff and counsel for the defendant an adjournment was granted. Her letter to the parties dated August 25, 2000 is in the court file. I only mention this letter because it refers to the plaintiff not having arranged for her witnesses, including her doctor. [5] The trial was again set down for May 22 and 23, 2001 before me. The plaintiff again attended without counsel and at the commencement of the trial I explained to her the procedures re presenting her evidence, examination of witnesses, her right to cross-examine any defence witnesses and her right to present her own testimony. She then indicated that she had no other witnesses than herself. [6] Her testimony was that she was 44 years of age, married in 1982, divorced in 2001, and had two daughters, Amanda and Melissa, now aged 17 and 16 respectively. In September, 1984 she and her husband took out a mortgage with the Royal Bank and mortgage insurance for life and disability for both she and her husband. [7] She had trained to be a secretary and worked at a number of law firms between 1976 and 1992. Her last place of employment was at the firm of Wolfson, Schelew and Zatzman. [8] On July 20, 1992 she felt pains in her chest and went to the Dartmouth General Hospital where she spent the next six days. She never returned to work. At the time she entered the hospital she thought she was having a heart attack but on investigation by her cardiologist, Dr. Gupta it was determined she had no heart problems but rather that her problems were caused by hypertension coupled with stress anxiety disorder. [9] On cross-examination four medical reports were entered as Exhibit 1, all indicating no myocardial ischemia. These reports were dated between September 8, 1992 and February 22, 1994, the latter referring to a second episode when she was in hospital because she felt her heart was racing. [10] Her family doctor was Dr. MacRae and she testified that it was on his advice that she did not return to work, though no evidence was provided to support this or to indicate the reasons for, or the length of any period before returning to work. [11] She testified that from July, 1992 she suffers from pains in the chest, nausea, depression, migraine headaches and stress. Her family doctor sent her to Dr. Rubens, a psychiatrist, though it was months before she saw him and afterwards failed to keep her appointment and when called by Dr. Rubens' office to make new ones she never returned the calls. By letter of Dr. Rubens to Dr. MacRae (Exhibit 3) he indicated he considered her as discharged. However, she did see him once more as a result of a letter from the defendant to Dr. MacRae and again further appointments were made which she chose not to attend. [12] In March, 1999, 4 ½ years after she saw Dr. Rubens, Dr. MacRae arranged for her to see Dr. Maynes, a psychiatrist, and she saw him three times between March and April but she then did not go back to him for over a year when she saw him in 2000. [13] Between 1999 and 2000 she attended once a week at the Mental Health Clinic at the Nova Scotia Hospital. [14] An appointment was arranged by the defendant for the plaintiff to be examined by Dr. Rosenberg on May 3, 1995. She attended but with a friend and refused to be examined unless her friend was with her. Dr. Rosenberg refused to examine her this way and she left. [15] The defendant then arranged for the plaintiff to be examined by Dr. Akhtar, also a psychiatrist, on March 5, 1996. She attended, again with a friend, but this time she consented to and was examined while the friend was not permitted to be with her. [16] Over the years she was prescribed and took certain drugs, Rendil for hypertension, Paxil to calm her down, taken when she felt anxious and Penormin for blood pressure. She testified that she saw Dr. MacRae once a month for the first four years, Dr. Rubens twice in 1994, Dr. Maynes three to four times in 1999-2000 and Dr. Akhtar once in 1996. [17] She indicated that heavy work at home, such as carrying laundry, vacuuming, sweeping and scrubbing, give her angina and she is unable to do outside yard work. For all of these her children, now teenagers, help. She does dishes and cooking, plays darts and bingo several evenings a week, does toll painting and helps the children with their homework. [18] She says her condition has not changed since she suffered the first symptoms in July, 1992. She took great pride in her work and feels she would be demeaning herself by not performing at 100% as she did. [19] On cross-examination she admitted that she refused to take anti-depressant medication recommended by Dr. Rubens and also Dr. MacRae and acknowledged that she was advised by each of the psychiatrists she saw that psychotherapy would be a long time process, yet she failed to keep appointments and let long periods go by without getting treatment. As well, even though Dr. Akhtar recommended anti-depressant medication and a program of psychotherapy in March of 1996 she did neither until 1999 and testified she has no idea why she did not. [20] The plaintiff then closed her case, indicating that she had no further witnesses, no doctors and no medical reports. [21] The defendant made a motion for non suit on the basis that no copy of a policy had been introduced so the nature of the benefit and the conditions applying to it were unknown, that there was no evidence of disability, that there was no evidence of a permanent and total disability and that she has failed to take any recommended medical treatment over the 9 year period. [22] Perhaps that motion should have been granted but largely out of concern that the plaintiff was self-represented and at a decided disadvantage plus that there was some evidence of disability, I denied the motion. [23] As well, I directed counsel for the defendant to produce a copy of the insurance policy being satisfied that its production would be automatic under the Civil Procedure Rules in a normal situation and a copy may already have been provided to the plaintiff's then counsel and still be in his files. [24] The policy was produced and entered as Exhibit 4. Two witnesses were called by the defence. The first, Paulette Marie Jenkins, employed by Canada Life, testified that Canada Life has assumed administration of the Royal Bank policy. She indicated the plaintiff was indeed covered by the policy and that it was a one time payout policy, provided there was a total and permanent disability that rendered a person unable to work. The payment would be made 6 months after the commencement of the total and permanent disability. Medical evidence is required to prove that the disability is total and permanent. [25] The amount due after 6 months in this case is, as I have stated earlier, $48,345.00. [26] This witness reviewed the complete file regarding the plaintiff's claim including requests for medical reports (Exhibit 6), denials of claim, requests for review (which were done in June, 1993, August, 1994, March and October, 1995), requests for independent medical examinations and in each instance the claim was denied basically on the grounds that total and permanent disability was not established coupled with an inactive treatment program. In April, 1996 the complete file was reviewed and again the claim was denied. [27] The second witness was Dr. Akhtar whose report after examining the plaintiff was filed as Exhibit 2. For his report he had the benefit of all prior medical reports, took her personal history and completed his examination. His report indicated several important points. She told him that in her last job she found it difficult to handle the workload and cope with the abrasive personality of her boss; that she enjoyed her daily activities at home, particularly taking care of her children who were aged 6 and 7 when she first stopped work; and that she was very open that she did not want to return to work, enjoying her new lifestyle with the children. [28] He quoted her as saying “I feel healthier when home with the girls and no amount of money will get me back to work.” [29] He diagnosed her as suffering from an anxiety disorder and depression which he assessed as mild to moderate. His conclusion was that her condition was not permanent and that she required treatment of a combination of medication and psychotherapy (which she had avoided for the previous 3 years). His opinion was that she was only partially disabled at the time of his examination because of anxiety and depression. [30] Dr. Akhtar indicated that his opinion was “guarded” as to her returning to work and on cross-examination he explained that it was guarded because she did not want to return to work. [31] The policy is clear that there must be a total and permanent disability preventing the claimant from being able to perform any work. I need not deal with the law concerning the meaning of being unable to perform any work in this case because the plaintiff has completely failed to establish that she is totally and permanently disabled. The burden was on her to so prove and proof required the presentation of medical evidence to support the claim and none was provided. The only medical evidence before the Court was provided by the defendant and its content was that the plaintiff was not permanently disabled. [32] On that ground alone the plaintiff's claim must be dismissed. In addition, however, her failure to obtain medical treatment and to do what was prescribed over a 9 year period operates decidedly against her claim. Her failure to do so was not satisfactorily explained. So also was her failure to respond to her own lawyer's requests both to meet and attend medical appointments and obtain medical reports. In the latter case she did say that financially she could not afford the legal fees. However, there is no other evidence in this regard. [33] A total and permanent disability is one which is normally irreversible and expected to remain throughout one's life notwithstanding that recovery at sometime is a possibility. However, before one can establish that a condition is permanent he or she must submit to appropriate medical treatment. This plaintiff has proved neither the permanent disability nor that she has submitted to appropriate medical treatment. [34] There is abundant law concerning the effect of not calling certain witnesses, in this case medical doctors, indicating that there is an adverse inference the Court may draw which is that their evidence would adversely affect the plaintiff's case. While the plaintiff was not represented by counsel may be a factor for not drawing that inference, there is a very strong probability that whatever medical reports which are available would not support a total and permanent disability rendering the plaintiff incapable of performing any work. [35] Taking all into consideration there can be no other conclusion than that the plaintiff has failed to meet the burden of proof, which she must meet and her claim must be dismissed with costs based upon the regular scale. J.