Citation: Kabongo v. Aviva Insurance Company, 2021 ONLAT 20-005930/AABS

Licence Appeal Tribunal File Number: 20-005930/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.

Between:

Noel Kabongo

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Noel Kabongo, Applicant

Francesco Vumbaca, Articling Student

For the Respondent:

Colin Yen, Adjuster

Brenden Carruthers, Counsel

Court Reporters:

Sheila Finlay - (June 7 and 8, 2021)

Dayne Snell - (June 9 and 11, 2021)

Bev Killen - (June 14, 2021)

Heard by videoconference:

June 7-9, 11 and 14, 2021

BACKGROUND

1The applicant, Noel Kabongo, was injured in an automobile accident on April 30, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva Insurance Company, the respondent.

2The respondent denied the applicant’s claim for non-earner benefits (NEBs) and, as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on September 22, 2020 and the matter proceeded to a videoconference hearing.

ISSUES IN DISPUTE

4The following preliminary issue is to be decided:

(i) Is the applicant is entitled to claim NEBs for failure to comply with the statutory requirements pursuant to s. 36(2) of the Schedule?

5The following substantive issues are to be decided:²

(i) Is the applicant entitled to a NEB in the amount of $185.00 per week from May 28, 2018 to April 30, 2020?

(ii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

(iv) Is the applicant entitled to costs because the respondent acted unreasonably, frivolously, vexatiously or in bad faith?³

RESULT

6I find that:

(i) The applicant is not statute-barred from pursuing her claim for NEBs;

(ii) The applicant is not entitled to NEBs from May 28, 2018 to April 30, 2020; and

(iii) The applicant is not entitled to an award, interest, or costs.

ANALYSIS

The applicant is not statute-barred from pursuing her claim for NEBs

7Section 36 of the Schedule outlines the process for claiming a NEB. Section 36(2) states that an insured person must submit a completed Disability Certificate (OCF-3) with their application for a specified benefit pursuant to s. 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

8The respondent submitted that the applicant is statute-barred pursuant to s. 36(2) of the Schedule from proceeding with her claim for NEBs because she did not submit a “completed” OCF-3 within 104 weeks of the accident. The respondent’s position is that the May 8, 2018 OCF-3 completed by Dr. Saranjit Khaira, chiropractor, was not “complete” because Dr. Khaira indicated on the OCF-3 that the applicant did not suffer a complete inability to carry on a normal life.

9The respondent relied upon the decision of SM v. Aviva Insurance Company of Canada (SM v. Aviva),⁴ in which the Tribunal found that the OCF-3 at issue in that matter was not “complete” as required by s. 36(2)⁵ because the OCF-3 in that matter checked “no” in answer to the question, “Does the applicant suffer a complete inability to carry on a normal life?”⁶ The Adjudicator in SM v Aviva found that the purpose of the OCF-3 is the foundation for a claim for a specified benefit and, therefore, the term “completed” can only be reasonably interpreted to mean completed in a manner that certifies that an applicant meets the test for the benefit claimed.⁷ The respondent, in applying this principle, submitted that the applicant’s May 8, 2018 OCF-3 is not complete because it does not support her claim for NEBs.

10The respondent also relied upon the decision of Munu Munu v. Aviva Insurance Company (Munu Munu v. Aviva),⁸ in which the Tribunal also found that the applicant was not entitled to pursue her claim for NEBs on the basis that she failed to submit a “completed” OCF-3. Like SM v. Aviva, the OCF-3 at issue in this matter also answered “no” to the question “Does the applicant suffer a complete inability to carry on a normal life?”⁹

11The applicant disagreed with the respondent’s position and submitted that the OCF-3 was complete despite Dr. Khaira’s negative answer to the NEB test. To support her position, the applicant relied upon the decision in 16-000279/AABS v Certas Home and Auto Insurance Company (16-000279).¹⁰ In 16-000279, the Tribunal found that the applicant had applied for NEBs despite the fact that the OCF-3 in that matter indicated that the applicant did not meet the test for NEBs.¹¹

12I agree with the applicant and find that her May 8, 2018 OCF-3 was complete for the following reasons. First, the OCF-3 has all the information available for the respondent to determine the applicant’s entitlement to NEBs. The OCF-3 was filled out, dated, and signed by a regulated healthcare professional. The document confirmed, or more accurately denied, the applicant’s disability and entitlement to NEBs.

13Second, the respondent’s response to the May 8, 2018 OCF-3 was not that the applicant’s application for NEBs was incomplete; rather, the respondent’s June 6, 2018 correspondence addressed the applicant’s entitlement to NEBs. In my opinion, the respondent’s actions in determining that the applicant was not entitled to NEBs suggested that it received a completed application as an application for and entitlement to a benefit are two separate issues.

14Third, I prefer the reasoning in 16-000279 over that of SM v. Aviva and Munu Munu v. Aviva because the decision in 16-000279 is more reflective of the consumer protection nature of the Schedule. I also find the reasoning in 16-000279 more compelling because there is nothing in the Schedule which specifically requires an OCF-3 to be positive for a specified benefit which is being sought for it to be considered “complete” for the purposes of s. 36(2). Therefore, while the decisions in SM v. Aviva and Munu Munu v. Aviva are logical, the Schedule does not require the OCF-3 to be supportive of the specific benefit being claimed and, for that reason, neither should the Tribunal.

15For all these reasons, I find that the applicant’s May 8, 2018 OCF-3 was “complete” for the purposes of s. 36(2) and, therefore, she is not statute-barred from advancing her claim for NEBs before the Tribunal.

The applicant is not entitled to NEBs

16I find that the applicant has failed to prove on a balance of probabilities that she is entitled to NEBs from May 28, 2018 to April 30, 2020.

17The test for entitlement to NEBs is set out in s. 12(1) of the Schedule. It states that an applicant must prove that they suffer from a complete inability to carry on a normal life as a result of and within 104 weeks of an accident.

18Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident. “Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”¹²

19In submissions, both parties referred to the decision in Heath v. Economical Mutual Insurance Company (Heath),¹³ wherein the Court of Appeal held that:

the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.¹⁴

20Heath also outlines several principles for the determination of entitlement to NEBs as follows:

(i) There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

(ii) The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

(iii) 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;

(iv) The applicant must prove that their accident-related injuries continuously prevent them from engaging in substantially all of their pre-accident activities (this means that the disability or incapacity must be uninterrupted);

(v) “Engaging in” should be interpreted from a qualitative perspective, such that 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; and

(vi) 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 perform those activities.¹⁵

21The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities. This evidence is required to compare how much less time the applicant is able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.¹⁶ I agree with this principle.

22The applicant testified that prior to the accident, she suffered from back pain, knee pain, and ankle pain due to arthritis, and that she had a breast reduction on March 16, 2018. The applicant also testified that she suffered from depression, anxiety, poor sleep, concentration issues, and headaches prior to the accident. It was the applicant’s position that despite these pre-accident conditions, her ability to engage in activities and to carry on a normal life was not impaired. In fact, the applicant testified that prior to the accident, she would:

(i) Drive her children to basketball practice, swim classes, and to the mall almost daily;

(ii) Play basketball, bike, and camp with her children;

(iii) Attend the library with her children;

(iv) Dance with her children and teach them traditional African dances every Friday and Saturday;

(v) Braid and add extensions to her daughter’s hair;

(vi) Walk three times a week for 1.5 to 2 hours per session;

(vii) Attend the gym 3 to 4 times per week;

(viii) Go to church twice a week;

(ix) Go out with her friends and family twice a month shopping, to a restaurant, or to a sporting event;

(x) Provide transportation and translation services for her mother at medical appointments;

(xi) Clean her house daily;

(xii) Prepare African cuisine for her family; and

(xiii) Grocery shop independently.

23The medical evidence before me, however, presents a contrasting picture of the applicant’s pre-accident activities than those described by the applicant. For example, a January 27, 2017 letter by Dr. Roland Wong¹⁷ noted that the applicant had difficulty walking, difficulty performing activities that required any prolonged sitting, standing, and walking, and that she may benefit from physical therapy at that time.¹⁸

24In the September 14, 2017 psychiatric assessment report by Dr. Shari Swartz, psychiatrist,¹⁹ Dr. Swartz diagnosed the applicant with major depressive disorder, likely recurrent, moderate severity (complicated bereavement) and also provisionally diagnosed the applicant with post-traumatic stress disorder.²⁰ These diagnoses were in relation to the death of the applicant’s premature infant daughter in March, 2016 in which she witnessed her daughter pass away following extreme resuscitation efforts. At the time of this assessment, Dr. Swartz reported that the applicant was experiencing insomnia, headaches, dizziness, fatigue, and cognitive symptoms including memory problems with forgetfulness and decreased concentration.²¹ The applicant reported to Dr. Swartz that she did not have any friends²² and that she experienced social isolation and avoidance.²³ Dr. Swartz reported that due to a headache and trouble concentrating, the applicant could not complete two self-report questionnaires and instead spent a great deal of time staring at the paperwork.²⁴ Dr. Swartz made several recommendations to the applicant which included prescribing her with Cipralex for her depression and trazodone for her sleep, and she was referred to their three-week intensive day hospital program.²⁵ Dr. Swartz also discussed the importance of regular cardiovascular exercise for sleep and depression with the applicant, and noted that her day hospital therapist would provide her with information on free gym services and exercises classes in the community.²⁶

25Dr. Andrew Moran, one of the applicant’s family physicians, completed a health status report for the applicant’s application for benefits through the Ontario Disability Support Program (ODSP) dated October 26, 2017.²⁷ In this status report, Dr. Moran confirmed that the applicant suffered from depression, sleep disturbances, decreased concentration, post-traumatic stress disorder, chronic lumbar pain, cervical pain, and headaches. Dr. Moran also noted that the applicant’s restrictions as a result of her impairments were fatigue which resulted in her inability to study, decreased mood, and inability to cope with daily life, that she was unable to undertake any physical work, and that she had difficulty with concentration, neck pain and headaches. It was Dr. Moran’s opinion that the applicant was unable to work or study at the time of his report due to a combination of physical and psychological difficulties.

26Dr. Moran also completed an intellectual and emotional wellness scale and an activities of daily living index as part of the applicant’s ODSP application. In the intellectual and emotional wellness scale, Dr. Moran categorized the following actions as “class 4” in that they were unsafe and required assistance from other persons in order for the applicant to complete the activities, or that the applicant had severe symptoms or signs:

(i) Consciousness (attentional focus, levels of consciousness);

(ii) Intellectual function (cognitive disturbance, planning, organizing, sequencing, and abstracting difficulties);

(iii) Learning (language processing, mathematics, attention difficulties); and

(iv) Motivation (depressive volitional problems).

27Dr. Moran also categorized the following as “class 3” activities such that there were safety concerns and that the applicant required assistance from other persons in order to complete the activities or that the applicant had moderate symptoms or signs:

(i) Body functions (eating, eliminating, sleeping);

(ii) Emotion (affect, mood, anxiety, and other mentions);

(iii) Associated psychological disturbances, panic phobia); and

(iv) Memory.

28In the activities of daily living index, Dr. Moran provided the following ratings to the applicant’s activities:

Rating

Class 4 Scale

Class 3 Scale

Class 2 Scale

Rating Meaning

Indicating severe or complete limitations on most occasions to completion of the task

Medium or moderate limitations, or requires considerably longer time to complete the task and may on some occasions be unable to complete the task with or without accommodations and with or without moderate pain

Mild or slight limitations or slightly longer time requirements to complete the task or mild exacerbation of pain or accommodation may be required to complete the task

Activities under this rating

Attention span is sustainable and appropriate to task
Physical strength commensurate with person’s age and sex
Ability to participate physically in sustained activity
Exhibits normal limits of functioning with respect to intelligence
Do housekeeping (cleaning, laundry, meal preparation, shopping for essentials such as groceries, clothes)
Exhibits normal limits of functioning with respect to impulse control and behaviour
Walks three blocks or more on level ground without needing to rest
Climbs up and down one flights of stairs (six steps)
Able to stand

29The applicant also completed a self-report form as part of her application for ODSP benefits dated December 16, 2017. On this form, the applicant reported that she had severe pain as a result of her disability and when asked how much her pain stopped her from completing her daily activities, the applicant reported that her pain made her “unable to do anything.” This form also reported that the applicant avoided community and social settings.

30After the applicant’s ODSP application was denied, Dr. Moran opined that the applicant’s disabilities that were present on and before April 25, 2018 were in fact greater than what he had originally indicated.²⁸ This led Dr. Moran to:

(i) Increase the applicant’s emotion from a class 3 to a class 4 category on the intellectual and emotional wellness scale; and

(ii) On the activities of daily living scale:

(a) Change “walks three blocks or more on level ground without needing to rest” from a class 2 to a class 4 rating;

(b) Change “exhibits normal limits of functioning with respect to impulse control and behaviour” from a class 2 to a class 3 rating;

(d) Added “able to use means of public transport if available” to the class 2 rating;

(e) Added “wash all parts of the body, able to maintain personal hygiene and grooming” to the class 3 rating; and

(f) Added “able to sit for sustained period” to the class 3 rating.

31Additionally, in a Mental Health Services Adult Outpatient Program report by Mingyu Wang, social worker, dated April 18, 2018,²⁹ which was less than two weeks prior to the accident, the applicant was reportedly limited in her counselling session by a bad headache and was unable to concentrate. Wang reported that the applicant requested to have all documents, including questionnaires, read out loud to her, and that the applicant had difficulty understanding many of the questions and needed extra clarification. The applicant reported to Wang that her mood had been consistently low, that she had difficulty with motivation and energy, and that she had been leaning on her family for help with chores and household activities.

32While I do not find that the applicant was intentionally misrepresenting her pre-accident activities and the severity of her pre-accident health conditions during the hearing, I place more weight on the pre-accident medical documents as they do not rely upon the applicant to be an accurate historian. Additionally, when the discrepancies were put to the applicant on cross-examination, the majority of her responses were that she did not recall the information being put to her. As a result, I find that the applicant’s pre-accident function and activities were as follows:

(i) The applicant had moderate limitations or required additional time to be able to wash all parts of her body, maintain personal hygiene, and grooming;

(ii) The applicant was not engaging in regular exercise;

(iii) The applicant had difficulty walking. She had severe limitations or was completely unable to walk three blocks or more on level ground without needing to rest. She also had moderate limitations or required considerably longer time to climb up and down one flight of stairs (six steps);

(iv) The applicant was unable to undertake any physical work or participate in any sustained physical activity. The applicant also had difficulty performing activities that required prolonged sitting and standing;

(v) The applicant was experiencing insomnia, sleep disturbances, dizziness, and fatigue which decreased her mood and made her unable to cope with daily life;

(vi) The applicant had severe limitations or was completely unable to sustain her attention appropriately to tasks;

(vii) The applicant was experiencing headaches, cognitive symptoms and had difficulty concentrating. On two occasions, the applicant was unable to complete written questionnaires due to a headache and difficulty concentrating, and she required the assistance of others to complete these tasks;

(viii) The applicant was not independent with household chores and activities as she relied on her family for assistance. She was also noted as having medium or moderate limitations, or required considerably longer time to clean, complete laundry, prepare meals, and shop for essentials such as groceries and clothes; and

(ix) The applicant confirmed that she did not have any friends, that she experienced social isolation, and avoided community and social settings.

33In comparing the applicant’s activities and life circumstances as set out by the pre-accident medical documents to the applicant’s activities and life circumstances post-accident, I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life. Post-accident:

(i) The applicant still reported that her sleep, energy, and concentration remained poor;³⁰

(ii) The applicant remained unable to work;³¹

(iii) The applicant continued to not engage in regular exercise;³²

(iv) The applicant remained limited in her ability to perform functional tasks such as lifting, bending, carrying, sitting, standing, kneeling, squatting, balancing, reaching overhead, climbing, and descending stairs, and walking for extended periods of time;³³

(v) The applicant continued to struggle with her self-care activities, namely shaving and putting on her shoes;³⁴

(vi) The applicant continued to have difficulty with chores such as cleaning the bathtub, cooking, changing bed sheets, making the bed, vacuuming the floor, washing dishes, grocery shopping, and taking out the garbage.³⁵ However, the applicant resumed simple meal preparation, light cleaning, and light shopping;³⁶

(vii) The applicant experienced difficulty in taking care of and playing with her children, as well as participating in pre-accident activities and hobbies such as shopping and dancing;³⁷

(viii) The applicant reported that she continued to not participate in social activities and that she did not go out with her family or friends;³⁸

(ix) The applicant continued to have headaches when she concentrated;³⁹

(x) The applicant continued to complain of cognitive problems including difficulty focusing and sustaining attention;⁴⁰ and

(xi) The applicant continues to not engage in walking or jogging.⁴¹

34On the evidence, the applicant was not continuously prevented from engaging in substantially all of her pre-accident activities as there is little to no change when comparing her pre- and post-accident function and activities.

35The only significant difference between the applicant’s pre- and post-accident functionality and activities was her driving. Prior to the accident, the applicant testified that she would drive her children to their activities and after the accident, the applicant testified that she does not drive. In fact, the applicant was diagnosed after the accident with specific phobia (driving, being a passenger, being a pedestrian).⁴² Even if I accepted this diagnosis, I do not find that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities solely as a result of her driving phobia.

36On the evidence, I find that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident from May 28, 2018 to April 30, 2020 and, as a result, she is not entitled to NEBs for this period.

Award

37Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

38As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

39As there are no benefits owing, no interest is payable.

Costs

40Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules) allows a party to request its costs if it believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

41The applicant sought her costs of the proceeding in the amount of $5,000.00. The applicant submitted that costs were warranted in this matter as the respondent had acted unreasonably and blatantly engaged in bad faith conduct by denying the applicant’s various treatment plans.

42The applicant’s request for costs is denied. The applicant’s submissions on her claim for costs centre primarily on the respondent’s conduct in denying and subsequently approving treatment plans that were no longer in dispute at the time of the hearing. Such conduct is covered by s. 10 of Regulation 664 rather than under Rule 19. I also find that there is no evidence that the respondent’s actions in the proceeding rise to the high level of unreasonableness, frivolousness, vexatiousness, or bad faith such than an order for costs is warranted.

CONCLUSION

43For the reasons outlined above, I find that: