S.B. v. Aviva General Insurance Company, 2021 CanLII 2055

Citation: S.B vs. Aviva General Insurance Company, 2021 ONLAT 19-004142/AABS

Released Date: 01/15/2021

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

Between:

S.B.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Dianna Morello, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD: In Writing and by Teleconference

April 6, 2020

I. OVERVIEW

1The applicant was involved in an automobile accident on June 29, 2018, when he was 61 years old, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The parties agree that the applicant sustained soft tissue injuries to his neck, back, left shoulder and suffers from headaches as a result of the accident. The applicant was denied weekly non-earner benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant is seeking payment of weekly non-earner benefits. He claim that his accident impairments effectively continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The respondent maintains its denials of non-earner benefits (“NEBs”) is supported by the opinions of its medical experts. The respondent submits that the applicant only has subjective evidence and that it is not enough to meet his onus of proof.

II. ISSUES

3Is the applicant entitled to receive NEBs in the amount of $185.00 per week for the period of January 10, 2019 to date and ongoing, which was denied by the respondent on January 2, 2019?

4Is the applicant entitled to interest on any overdue payment of benefits?

5Is the applicant entitled to an award under Regulation 664¹ because the respondent unreasonably withheld or delayed the payment of a benefit?

III. RESULT

6Having reviewed all of the evidence, including the applicant’s affidavit, and having heard the testimony of the applicant, I find that the applicant is entitled to NEBs and interest. The applicant’s claim of an Ontario Regulation 664 award is dismissed.

IV. ANALYSIS

A. Non-Earner Benefit

7The applicant was paid NEBs by the respondent up to January 9, 2019. He is entitled to a non-earner benefit from January 10, 2019 to June 29, 2020 of $185.00 per week if he can prove that he has a complete inability to carry on a normal life during for that period as a result of the motor vehicle accident.² A complete inability to carry on a normal life means an impairment as a result of the accident that continuously prevents the person from engaging in substantially all of the activities in which he ordinarily engaged before the accident.³ The onus is on the applicant to establish that he meets the test for entitlement to NEBs on a balance of probabilities.

8Both parties rely on the 2009 Court of Appeal decision of Heath v. Economical Mutual Insurance Company (“Heath”), and agree that the general principles from that decision apply for determining whether the applicant is entitled to NEBs⁴. Following Heath, I find that the following principles apply to the applicant’s circumstances:

a. The starting point for the analysis will be to compare the claimant's activities and life circumstances before the accident to his activities and life circumstances after the accident;

b. All of the pre-accident activities in which the applicant ordinarily engaged should be considered. However, greater weight may be assigned to those activities which the claimant identifies as being important to his pre-accident life;

c. It is not sufficient for a claimant to demonstrate that there were changes in his or post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him being continuously prevented from engaging in substantially all of his pre-accident activities;

d. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted";

e. The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he is truly "engaging in" the activity.

f. In cases where pain is a primary factor that allegedly prevents the insured from engaging in his former activities, 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.

g. The consideration of a claimant’s activities and life circumstances prior to the accident “requires more than taking a snapshot of the claimant’s life in the time frame immediately preceding the accident”. This consideration should involve “an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.”

9The applicant submits that before the accident, the most important activities to him were his caregiving and time spent with his grandchildren, his volunteer activities with the Knights of Columbus, fishing, hunting with his father and camping. He submits that because of the impairments he sustained in the accident, he is practically prevented from engaging in those activities. I agree with the applicant and find that he continued to be entitled to NEBs after January 10, 2019 for the following reasons.

10The applicant provided affidavit evidence that he feels incapable of engaging in many of his pre-accident activities. He was scheduled to undergo a cross-examination on his affidavit and the respondent declined to conduct a cross-examination. However, I had questions for the applicant arising from his affidavit. Under LAT Rule 9.1, the Tribunal may at any stage of the proceeding order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding. ⁵ Accordingly, the applicant testified under oath and clarified a number of matters arising form his affidavit evidence.

11According to the applicant’s testimony and evidence, his pain complaints as a result of the accident on a pain scale of 0 to 10 with 0 being no pain and 10 being the worst pain he has ever experienced are as follows :

i. Headaches: They occur approximately three times a week: At their worst, they are 6/10 in severity and improve with Tylenol. ⁶ He testified that his headache pain is 7/10 on the pain scale and he now gets them a couple of times per week.

ii. Low back pain: As of December 2018, pain was intermittent in the lower back and aggravated when bending over.⁷ There were no radicular symptoms in December 2018. ⁸ As of April 2020, the pain radiates down the back of his right leg. His back starts to stiffen up if he sits too long and he gets a throbbing pain rated at 5/10 pretty much every day. The pain is alleviated after couple of hours with a heating pad then an ice pad. Otherwise it lasts all day. He also gets a sharp shooting pain a couple of times per week that lasts a couple of seconds.

iii. Neck pain: It is a constant shooting pain rated at 7/10 and 8/10 after physiotherapy. His neck locks up both left and right. He has tingling and stiffness. Regular Tylenol three times per week for his headaches takes his neck pain down to 5/10 to 6/10. The neck pain causes his headaches.

iv. Shoulders: His shoulder complaints are different from pre-accident because he had no pain pre-accident. Post-accident his shoulders are tight with an aching constant muscle stiffness that is alleviated by Tylenol, physiotherapy ice packs and a heating pad. The left shoulder pain is 8/10 continuously and the right is 5/10 continuously. He could not recall what his right shoulder was like pre-accident.

12The applicant’s evidence and testimony is that he has memory and concentration problems, balance problems and blurry vision at times since the accident . He is now short tempered, impatient and easily frustrated.

13According to the documentary evidence, the applicant’s affidavit and his testimony, the applicant’s pre-accident activities and post accident activities were as follows:

Activity Pre-Accident

Activity Post-Accident

Camping about 45 days per year in a camper trailer consisting of going out 6 to 7 times over the summer with 3 to 4 of those times with his grandchildren plus an additional 2 weeks in the fall hunting with his 86-year-old father.

Cannot because he feels incapable due to his pain complaints and has lost interest.

Fishing almost every weekend from a boat and once or twice during the week from a riverbank. He fished several times per year with buddies when not camping. He went ice fishing a few times per year.

He has fished twice since the accident-once with his son and once with his father. Getting in and out of the boat is a physical challenge because he gets dizzy and unbalanced and it aggravates the pain in his shoulders, back and knees. He can’t cast because of his injuries. He forgets items needed for fishing, which frustrates and upsets him.

Hunting two weeks in the fall.

Unable because of his headaches, dizziness and balance issues.

Attending hockey games once per week with his grandson.

He has gone twice because seating is uncomfortable for his back and the cold of the arena emphasizes his pain.

Babysitting his grandchildren two times per month and up to 5 days per time. He also walked his granddaughter to and from school and provided after school care five days per week and provided full day care in the summer.

He has not baby sat his grandchildren since the accident because he gets impatient with them, stressed and tired and is a danger to them due to his failing memory complaints (e.g. He left a stove on). He has walked his granddaughter to and from school when his daughter cannot get any other help.

Driving a vehicle was unlimited.

He is limited to travelling short distances due to pain in his neck, low back and buttock. At times he cannot drive due to dizziness, blurred vision or a significant headache.

He was independent in keeping track of appointments and errands

He needs assistance to keep track due to his memory complaints.

Reading

He can do it but more slowly.

Watching TV

He can do it but more slowly.

Socializing

He no longer can socialize because of his anger, frustration and inability to express himself.

Housekeeping consisting of vacuuming, mowing the lawn, weeding the vegetable garden, doing the dishes, laundry, changing the bedding, grocery shopping.⁹ Cleaning the oven, sweeping, dusting, cleaning the refrigerator, ¹⁰

He no longer does any chores that require him to bend or lift any heavy objects as it causes back pain, dizziness when moving his head and some shoulder pain.¹¹ He can engage in some light housekeeping tasks, but at a slower pace or with help such as grocery shopping, preparing only a light and simple meal, and cleaning dishes. He cannot vacuum, clean the bottom part of the fridge and can only partially make the bed. He can only take out light garbage. Laundry is difficult. As of June 2019, he could not shovel snow, garden or cut the grass.¹² He testified that by April 2020 he was doing some grass cutting, but the majority was being done by his son. He was back to gardening but with help from his wife. He was able to use the snow blower 3 times that winter but was unable to shovel snow.

He was a member of Knights of Columbus for 7 years and attended monthly meetings 6 to 7 times per month. He volunteered at various community events including card nights, seniors’ nights, and an annual church barbeque event and children's Christmas party.

He has attended meetings twice since the accident because he gets agitated sitting and has problems with his neck. Nor is he interested. He feels physically unable to do the volunteer work and has lost interest in socializing. He gets annoyed with people.

Helping his parents

He cannot make the long drive alone to visit them. He is not able to help them around the house as he used to.

14The respondent submits that medical records were not produced, despite being requested. It submits that I should not accept the applicant’s affidavit evidence because it is subjective and that there is no corroborating evidence that he engaged in the activities he claimed he engaged in. It submits that the first time the applicant disclosed the activities that were important to him was in his affidavit and that he failed to provide any evidence of the frequency of the activities. It submits that, given the applicant’s pre-existing health issues, it is unrealistic to accept that they prevented the applicant from working, but not from engaging in the activities he swore were important to him.

1. Failure to Produce Medical Records

15The respondent submits that it was suspicious that the applicant failed to produce the clinical notes and records of his family physician, Dr. Ananthan, from October 2018 to May 3, 2019. The respondent also submits that it is an unlikely coincidence that Dr. Ananthan’s clinical notes and records do not record any accident related complaints from May 3, 2019 until September 18, 2019, or two days after the case conference and after receipt of a letter from the applicant’s lawyer, at which time Dr. Ananthan noted a number of activities that the applicant could not do. The applicant, in his reply submissions, filed a letter from his lawyer’s office dated September 22, 2019, enclosing a copy of the clinical notes and records that the respondent claimed were missing. Although the applicant was seeing Dr. Ananthan for other health conditions, his accident related complaints are recorded in some of the clinical notes from May 3, 2019 to September 18, 2019. Accordingly, I do not find much merit to the submission.

2. Pre-existing Health

16The applicant’s pre-accident medical history includes a left shoulder arthroscopy from a 2010 work accident, melanoma diagnosed in 2010, heart valve surgery in 2002 at age 34, diabetes, and bilateral knee osteoarthritis. His limitations and health issues as set out in his family doctor’s clinical notes and records are: from 2016 - occasional back pain, non-restorative sleep and chronic fatigue, mild increased hip pain, right hand tremor and pain into his upper right arm into his shoulder, and a diagnosis of osteoarthritis of the right shoulder, knees, ankles, feet, neck, back, elbows & left wrist; from 2017- a history of bilateral hip and low back pain, mild to moderate L4-5 & L5-S1 bilateral facet osteoarthritis and suspected foraminal stenosis of L-5-S1, right buttock pain from extended sitting that disappears after walking thought to be piriformis syndrome and a referral for a CT scan of the spine for a history of right sciatica mild spondylosis; and from 2018 – he fell in February bruising his left hip and abrading his left elbow and knee, he had Increased blood pressure, was diagnosed with asymptomatic diverticula, reported feeling well in May and he had a normal film taken for right sided chest pain in June 2018.

17There is no dispute that the applicant had a number of pre-accident health issues. He has a hand tremor that he testified started after the accident. He did not recall talking to his family doctor on October 20, 2016 about his hand tremor. However, his evidence was that it did not affects his hunting abilities. Although he underwent a shoulder arthroscopy for his pre-accident work injury, the applicant stated that he did not have any shoulder pain prior to the accident. The medical records corroborate that there is no record of shoulder complaints in the year prior to the accident, nor any complaints of vertigo. The applicant testified that, for years prior to the accident, he was unable to get down on his knees. Therefore, he had to bend to do activities that others would get on their knees to do. He reported feeling well in May 2018 and I find no reason to disbelieve the applicant for the reasons given below.

18Dr. Galit Kleiner, a neurologist who conducted an insurer’s examination (“IE”) at the request of the respondent on December 4, 2018, stated the applicant has a significant past medical history, which likely contributes to his current clinical presentation. However, the accident caused him a significant amount of pain in relation to his headaches and neck spasm. Dr. Kleiner stated that prior to the accident, the applicant had the same pre-existing conditions and was fully functioning. But for the accident he would not have this level of impairment.

19The activities that the applicant described as important to him were not strenuous. He was already physically limited before the accident. Therefore, while the same injuries may not have had such a deleterious affect on a healthy person, I find that it did not take much of an injury from the accident to have a major affect on the applicant’s functional abilities.

3. Failure to Disclose Important Activities

20I do not agree with the respondent’s submissions that the applicant did not disclose his pre-accident activities before serving his affidavit. The applicant’s affidavit evidence that he enjoyed camping should have been of no surprise to the respondent, given that the applicant was pulling a camping trailer when the accident occurred. He advised of his volunteer and babysitting activities in June 2019.¹³ Dr. Kleiner reported that the applicant had leisure activities, but she did not list what those were. She only provided an example of the applicant attending his grandson’s sporting events as one of his leisure activities.¹⁴ By providing an example, either Dr. Kleiner was advised of other leisure activities or she did not ask about further activities once one example was given.

21Loreta Stanulis-Duz, occupational therapist, also conducted an IE of the applicant on October 31, 2018. She reported that prior to the accident, the applicant babysat his grandchildren, went to hockey games and visited his parents in Coldwater, which also corroborates the applicant’s evidence of his activities.¹⁵

22The respondent relies on the report of Dr. Farhan Siddiqui, physician, who conducted an IE at the respondent’s request on November 13, 2018. He was asked to describe the activities the claimant continues to be able to perform despite his injuries, the activities that he is unable to perform as a direct result of the motor vehicle accident and the significance of those activities to the claimant. Dr. Siddiqi responded that the applicant is able to perform all activities that he performed prior to the accident, but did not list those activities. He gave one example of a chore the applicant cannot do because of an inability to bend, stated that he has no caregiving responsibilities, and stated that Dr. Kleiner found that the applicant had a cervical and lumbar strain and sprain and cervicogenic headaches that were interfering in his daily life activities, such as household duties, as well as enjoying recreational activities. Given the format of Dr. Siddiqui’s report, I would have expected to see a list of the pre-accident activities or a comment that, when asked, the applicant replied that he had none.

23I draw an inference from the reports that the IE assessors did not ask the applicant to describe all of his pre-accident activities. Further, the respondent had an opportunity to cross-examine the applicant about what was said to the assessors and declined to do so. After I obtained clarification from the applicant under oath on some matters in his affidavit, the respondent was provided with another opportunity to cross-examine the applicant on questions arising from my questions. The respondent asked the applicant when his term ended as treasurer of the Knights of Columbus and whether he advised Ms. Stanulis-Duz that he was able to pick up his granddaughter after school. The applicant could not recall telling that to the occupational therapist. He testified that he probably looked after his granddaughter after the accident because his daughter could not get other help. I find the answer was reasonable. The occasional babysitting when a family member is desperate does not mean that the applicant is able to engage in the care of his grandchildren. Further, I note that the applicant has complained throughout of memory problems. Therefore, I do not find that his occasional lapse of memory means he is not credible. Without the respondent putting questions to the applicant about the credibility issues it has raised, despite having the opportunity to do so, I find no reasons to disbelieve the applicant.

24For the reasons given, I find that he was credible and, therefore, based on the applicant’s testimony and evidence, his activities of camping, hunting, fishing, caring for his grandchildren and his volunteer activities with the Knights of Columbus were activities that were important to him.

4. Corroboration of Subjective Complaints

25I accept that the applicant’s evidence that his pain and cognitive complaints combined with his dizziness affect his ability to engage in his pre-accident activities as he has described in the chart above. The applicant’s testimony and affidavit evidence is corroborated by Dr. Ananthan, who reported on September 20, 2019, that the applicant used to be outgoing, active in volunteering, caring for his grandchildren and socializing and that he was very limited. Dr. Ananthan reported that the applicant still suffers from neck, bilateral shoulder and back pain, which limits his ability to do certain tasks - i.e., housework, yard work, taking out garbage, carrying groceries, shovelling, mowing the lawn, as well as mobility. He was limited in his walking, sitting, standing, lifting, reaching and stamina. Since the accident, he suffered from increased anxiety and was very emotionally labile. Dr. Ananthan prepared an OCF-3 dated May 3, 2019 stating that the applicant’s impairments were going to last more than 12 weeks because he was limited in obtaining physiotherapy due to the extensive bruising he had from the accident.

26The applicant’s evidence is also corroborated by Dr. Kleiner, who determined that the applicant’s accident injuries were interfering in his daily life activities, such as household duties, as well as enjoying recreational activities. Dr. Kleiner’s opinion was that the accident injuries affecting the applicant were not neurological injuries.

27The applicant’s functional limitations are also corroborated by Ms. Stanulis-Duz, who observed that the applicant’s ability to lift and carry was limited to 5 pounds for a distance of 16 steps. She found that the applicant gave maximum effort and that he was limited in all planes of movement for his lumbar spine and, despite her determination that the applicant had functional range of motion of the cervical spine, he reported neck pain on assessment.

28The respondent relies on Ms. Stanulis-Duz’ s opinion that the applicant could engage in a number of his household tasks with pacing techniques. The applicant submits that modifying his every day activities means more trips or else assistance from others. He also submits that his limitations on lifting and carrying affects him in additional tasks, which were not assessed or mentioned by Ms. Stanulis-Duz, including when he has to travel with a bag, being able to lift and carry a vacuum, to load/unload a trailer, assist his elderly parents, or lift his grandchildren. Further, he submits that Ms. Stanulis-Duz’s recommendation that he should begin to resume daily tasks as a form of therapy was an acknowledgement that he was not participating in them at that time. I find the applicant’s arguments are persuasive. Further, she did not comment on how important housekeeping tasks were to the applicant. For these reasons, I do not find that the applicant’s ability to engage in some of his pre-accident housekeeping tasks on a modified basis or with assistance means that he is able to engage in substantially all of the activities in which he ordinarily engaged before the accident and were important to him.

29The respondent relies on Dr. Farhad Siddiqui’s opinion that the applicant is able to do all of his pre-accident activities. Dr. Siddiqui diagnosed the applicant with cervicogenic headaches, cervical sprain/strain and lumbar sprain/strain, which is consistent with all the other diagnosis. However, I give little weight to his opinion that the applicant is able to perform all activities that he performed before the accident for the following reasons. Dr. Siddiqui does not list the activities that the applicant performed before the accident or their importance to him. I do not know to what extent Dr. Siddiqi’s opinion was impacted by being asked by the respondent to list activities the applicant was unable to perform as a direct result of the accident (emphasis mine). There is no requirement in s.12 of the Schedule or the definition of a “complete inability” in s.3(7)(a) of the Schedule for the complete inability to be a “direct” result of the accident. A complete inability as a “direct result of the accident” is a much stricter test than as a “result of the accident.” Accordingly, the fact that Dr. Kleiner was not asked about injuries directly caused by the accident whereas Dr. Siddiqui was asked about injuries directly caused by the accident likely accounts for why their opinions about the applicant’s functional abilities as a result of the soft tissue injuries are different.

30Dr. Siddiqui reported that the applicant’s main complaints include headaches, cervical, lumbar and knee pain. He noted the applicant’s pre-accident history including osteoarthritis in the knees, but he did not believe this adversely effected his injuries or recovery from the accident. Dr. Siddiqui did not provide reasons for his belief, which one would have expected given Dr. Ananthan’s opinion that the applicant’s extensive bruising from the accident delayed his progress. The applicant was on anticoagulants and, accordingly, it is not surprising that he bruised easily. Some explanation was required by Dr. Siddiqi given that the applicant’s pre-existing osteoarthritis of the knees limited his ability to kneel. Being unable to bend over because of his accident injuries ended the applicant’s ability on a modified basis to engage in tasks that required kneeling or squatting. For these reasons, where Dr. Siddiqui’s opinion differs from the other medical opinions, I give his opinion less weight.

31The applicant stated that he had urine in his blood that was initially thought to be a urinary tract infection and that was ultimately was diagnosed as being caused from kidney stones. The applicant believes that the kidney stones were caused by the accident as they did not bother him before and Dr. Ananthan noted on one of her disability certificates (OCF-3) that, as a result of the accident, he had hematuria (blood in his urine). However, she did not provide that opinion in her September 2019 report. By that time, the applicant had been diagnosed with kidney stones,¹⁶ which were removed. Further, the February 15, 2018 note from Peel Memorial Hospital states that the applicant had hematuria and complained of suprapubic pain for years. His urologist, Dr. Beheshti, reported on July 24, 2018 that he had kidney stones removed in 2015. Accordingly, I am unable to find that the hematuria and kidney stones are accident related.

32I found the applicant was honest and I accept his testimony and evidence about the affect the accident has had on his ability to engage in his pre-accident activities that he found were very important to him. His post accident fishing, his attendances at the Knights of Columbus, the hockey games and his walking his granddaughter to and from school on occasion were isolated attempts to resume his pre-accident activities

33I find that, but for the accident, the applicant would have been able to continue with all of his pre-accident activities once his kidney stones were addressed. I find that prior to the accident, he had reached a level of activity, despite his health conditions, that was disrupted by all of his accident related complaints, including the level of pain he continued to experience from his soft tissue injuries. I find that the applicant has proven on a balance of probabilities that the extent to which his impairments and pain complaints impact on his ability to engage in all of his pre-accident activities effectively amounts to him having a complete inability to engage in substantially all of his pre-accident activities. Accordingly, for these reasons, the applicant is entitled to NEBS from January 10, 2019. Under s.12(3)(c) of the Schedule, NEBS are not payable for more than 104 weeks after the accident. Accordingly, the applicant is entitled to NEBs from January 10, 2019 to June 29, 2020 of $185 per week.

C. Interest

34The applicant is entitled to interest in accordance with the Schedule.

D. Regulation 664 Award

35If I find that the respondent has unreasonably withheld or delayed payments, under Reg. 664, I may, in addition to awarding the NEBs and interest to which the applicant is entitled, award a lump sum of up to 50 per cent of the amount to which the applicant is entitled together with interest on all amounts then owing to him at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.¹⁷ The Reg. 664 award is discretionary.

36The applicant submitted that at the commencement of the proceeding, the respondent unreasonably kept the applicant within the policy limits for medical benefits and cost of assessments of $3,500 on the basis that he sustained a minor injury and was subject to the Minor Injury Guideline, despite being in receipt of sufficient evidence of relevant pre-existing conditions that impacted on his ability to recover from his injuries. The applicant submits that the respondent denied him payment of medical benefits as a result. He submits that the denial was unreasonable and was not made in good faith. He was forced to pay for treatment out of pocket and proceed to a case conference in order to obtain a concession from the insurer about his entitlement to these benefits when such a decision would have been reasonable based on the evidence, at least a year prior to same. The applicant also submits that a review of the adjuster’s log notes shows that the respondent did not review the medical evidence submitted by the applicant.

37The respondent submitted that there is no evidence to support the applicant’s submissions. It is trite law that submissions are not evidence. No adjuster’s notes were filed and I was not referred to any evidence by the applicant in support of his allegations, despite paragraph 9(ii) of the Tribunal’s September 16, 2019 order.¹⁸ Nor did the applicant file any evidence in reply to the respondent’s submission that there was no evidence to support his allegations.

38Dr. Ananthan’s report and the applicant’s activities of daily living form were not prepared until after the applicant applied to the Tribunal. Despite those documents, it was not unreasonable for the respondent to rely on the IE reports. It was not until the applicant served his affidavit that the respondent would have been aware that some of its IE reports may not carry much weight. Accordingly, I am not persuaded that the respondent unreasonably withheld benefits. If I am wrong in finding that the respondent did not unreasonably withhold or delay benefits, then I exercise my discretion and decline to make a Reg. 664 award.

V. ORDER

39The applicant is entitled to NEBS in the amount of $185.00 per week from January 10, 2019 to June 29, 2020.

40The applicant is entitled to interest on the NEBS in accordance with the Schedule.

41The applicant’s claim for a Reg. 664 award is dismissed.

Footnotes

1. 1Automobile Insurance R.R.O. 1990, Reg. 664 (“Reg. 664”)
2. 2Section 12 of the Schedule.
3. 3Section 3(7)(a) of the Schedule.
4. 4Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
5. 5Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [the “LAT Rules”]
6. 6IE Report of Dr. Galit Kleiner, neurologist, of December 19, 2018, p.5
7. 7IE report of Dr. Siddiqui dated December 19, 2018., p.6
8. 8IE Report of Dr. Galit Kleiner, neurologist, of December 19, 2018, p.5
9. 9Dr. Galit Kleiner report of December 19, 2018, p.9
10. 10The applicant stated on an activities of daily living form dated June 11, 2019 that, before the accident, he could prepare meals, cooking, wash the floors and could partially clean the bathroom. He testified that his wife was responsible for those activities at the time of the accident.
11. 11Dr. Kleiner report of December 19, 2018, p.5
12. 12Activities of daily living form dated June 11, 2019
13. 13Activities of Daily Living form dated June 11, 2019, page 3 part 5.
14. 14Report of Dr. Kleiner, neurologist, dated December 19, 2018
15. 15Ms. Stanulis-Duz’ s report of December 19, 2018, p.9. She also noted that caregiving duties pre-accident did not apply to the respondent. Accordingly, caregiving duties are not the same to Ms. Stanulis-Duz as babysitting.
16. 16Report of Dr. Mojtaba Beheshti, urologist, dated July 24, 2018, who diagnosed the applicant with kidney stones and determined the hematuria was related to the applicant’s coumadin.
17. 17Section 10, Reg. 664
18. 18The order states at paragraph 9 “Submissions must make pinpoint reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed by the hearing adjudicator.”