Citation: Randhawa v. Unifund Assurance Company, 2021 ONLAT 19-010821/AABS

Release date: 05/06/2021

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:

Harnek S. Randhawa

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Ken Yip, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on March 14, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant applied for a non-earner benefit which was denied by the respondent. The applicant submitted an application to the Tribunal to dispute the respondent’s denial. The matter proceeded to a case conference and the parties were unable to resolve the matter. The parties agreed to proceed to a written hearing to have the Tribunal make a determination on the matter.

ISSUES

3Is the applicant entitled to a non-earner benefit of $185.00 per week from October 17, 2017 to April 10, 2019?

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

RESULT

5Based up on the evidence before me, I find the applicant is not entitled to receive the following benefits:

i. The applicant is not entitled to receive a non-earner benefit of $185.00 per week from October 17, 2017 to April 10, 2019.

ii. The applicant is not entitled to interest.

ANALYSIS

Non-earner benefit

6The test for entitlement to a non-earner benefit (“NEB”) is set out in section 12(1) of the Schedule. The Applicant must prove that he suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 3(7) (a) of the Schedule stipulates that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

7The respondent relies on the leading court of appeal case, Heath v. Economical Mutual Insurance Company² which outlines several principles to determine an applicant’s entitlement to a NEB. The principles set out within Heath are as follows:

i. There needs to be a comparison of the Applicant’s activities and life circumstances both pre and post-accident.

ii. The Applicant’s activities and life circumstances pre-accident must be assessed over a reasonable period of time prior to the accident. The duration of these activities is dependant on the facts of the case.

iii. All of the Applicant’s pre-accident activities must be considered. However, greater weight may be placed on activities which were more important to the Applicant’s pre-accident life.

iv. The Applicant must prove that his/her accident related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This necessitates that the disability or incapacity must be uninterrupted.

v. The term “engaging in” should be interpreted from a qualitative perspective. Even if an Applicant is still able to perform an activity, if significant restrictions are experienced by the Applicant when performing that activity, it may not qualify as “engaging in” with respect to that activity.

vi. If the primary reason that an Applicant is unable to engage in former activities is due to pain, the question becomes whether the degree of pain practically prevents the Applicant from performing those activities. The focus should not be on whether those activities can be physically performed by the Applicant.

8The applicant relies on two disability certificates (“OCF-3”) in support of his claim for entitlement to receive a NEB. The first OCF-3³ was completed by Dr. P. Shah, physiotherapist, dated March 23, 2017. It notes the applicant suffers from the following: right knee/leg sprain/strain, WAD II, and lumbar sprain/strain. It further notes the applicant is having too much pain while bending, sitting, turning, standing, and walking and that he met the test for a NEB for a period of 9-12 weeks. As the applicant’s claim for a NEB is outside of the time frame supported within this OCF-3, I have not considered it for entitlement to a NEB being claimed for this hearing.

9The second OCF-3⁴ was completed by Dr. N. Modi, physiotherapist, dated August 3, 2017. It notes the applicant suffers from headaches, right knee sprain/strain, WAD II, cervical strain/sprain, and lumbar sprain/strain. Under part 6, it notes the applicant is having pain with all activities of daily living (“ADLs”), making bending, standing, walking, and turning difficult. This OCF-3 supports that the applicant met the test for a NEB for a period of 9-12 weeks. I have not relied on this OCF-3 as it provides no description of the activities the applicant performed pre-accident and does not note the specific activities the applicant is unable to engage in/perform post-accident.

10The applicant argues the respondent has not complied with the requirements of s. 36(4) of the Schedule. This section requires an insurer within 10 days of receiving an application for benefits (“OCF1”) and an OCF-3 to a) pay the specified benefit, b) provide the applicant with a notice explaining the denial of the benefit based on medical or other reasons, and if the insurer requires a s. 44 examination relating to the specified benefit, and c) send the applicant a request under s. 33 (1) or (2).

11The applicant submits the respondent has not complied with any of the above requirements pursuant to s. 36(4) and further submits the respondent’s explanation of benefits (“EOB”), dated October 4, 2017 effectively stopped payment of the NEB based on the insurance examination (“IE”) assessors determination that he did not meet the test for a NEB. The applicant argues the EOB does not constitute a proper denial and as such, the respondent failed to comply with s. 36(4). The applicant submits the EOB confirms various findings of the IEs but submits the respondent’s denial is improper as it contradicts the findings of the IE assessors it relies upon. The applicant argues the respondent’s denial of the NEB in this EOB does not constitute a reason at all and is not a clear and unequivocal denial of the benefit.

12The applicant relies on the Tribunal decision 16-000517 v. Aviva⁵ in which the adjudicator found that the insurer had not complied with s. 38(8) of the Schedule and that its denial of benefits contained no medical reasons at all.

13The respondent argues that s. 36(4) does not apply, rather s. 37 which addresses the determination of continued entitlement to a benefit applies. The respondent argues it paid the NEB from the start upon receipt of the OCF-1 and OCF-3 and thus it has satisfied the requirements under s. 36. The respondent submits that s. 37 does not contain a “shall pay” provision and that s. 37(2)(c) allows an insurer to discontinue a benefit following the receipt of IE reports and determining the insured person is no longer entitled to the benefit. The respondent argues that medical, or other reasons is not a requirement for an insurer to discontinue payment of a benefit under s. 37(2).

14The respondent submits that an insurer is required to provide medical, and other reasons under s. 37(4) and that the Schedule is silent on the consequence for violation of s. 37(4). The respondent submits the consequence is not that an insured person is automatically entitled to the benefit, rather that the consequence is that the denial is not clear and unequivocal. The respondent relies on Stranges v. Allstate Insurance Company of Canada⁶ (“Stranges”) which found that an inadequate notice did not automatically entitle an insured person to payment of benefits. Rather, the insured person was still required to prove their claim.

15I agree with the respondent’s analysis that s. 36(4) is not the applicable section which applies but rather, s. 37 which applies to the termination of the NEB. As the applicant was paid a NEB after the respondent received the OCF-1 and OCF-3 and then the NEB was terminated following the respondent’s receipt of the IE reports. I find s. 37 is the relevant section of the Schedule which applies. The EOB dated October 4, 2017 terminated the NEB based on the findings of the IE reports dated September 21, 2017. While medical reasons and other reasons were not included within the EOB, I find s. 37 does not contain a shall pay provision. In aligning with the analysis of Stranges, I do not find this automatically entitles the applicant to a NEB beyond the stoppage date of the benefit. I find the onus is on applicant to prove entitlement to the benefit.

16The applicant relies on the psychological assessment report of Dr. J. Brunshaw, psychologist, dated January 10, 2020⁷. Dr. Brunshaw’s report notes reviewing the clinical notes and records (“CNRs”) completed by Dr. J. Baath, family doctor dated August 17, 2017 and April 17, 2018⁸. Dr .Brunshaw diagnosed the applicant with adjustment disorder with anxiety, major depressive disorder, and specific phobia - traveling in a vehicle. She also notes the applicant reports pre-accident that:

i. He had a lot of energy and generally was able to engage in activities without difficulty. He described himself as physically and mentally strong and energetic.

ii. Performed many of the household chores including; preparing and cooking meals, cleaning the house, washing dishes, and doing the laundry.

iii. He was very social and able to work prior the accident.

17Dr. Brunshaw notes the applicant reports that post-accident:

i. He has difficulty with sleep since the accident as he has difficulty falling asleep and awakens throughout the night. This has resulted in the applicant feeling tired during the day. The applicant attributes this to the pain and anxiety he is feeling.

ii. His energy level has decreased, and he is not able to perform many of the things he used to. He tires easily and it is hard to get up in the morning and that everything requires more effort. Struggles with personal care tasks such as putting on his shoes.

iii. He experienced a decline in his appetite and has lost weight. He reports feeling sad, down, and depressed since the accident and that he feels helpless and hopeless since the accident.

iv. He often feels irritable and is easily frustrated. He is upset because he is facing financial difficulties because he cannot work. He reports he feels like he has lost his independence and has become completely withdrawn. He does not socialize as often as prior to the accident. He reports he has lost interest in most of the activities which he enjoyed pre-accident.

v. His thoughts are pre-occupied with the accident and as such he is unable to focus, recall, or retain information. He reported his concentration is limited, and his memory is poor.

vi. He only drives short distances when necessary and his pain prevents him from driving long distances. He reports he is nervous as a passenger in a vehicle.

18While Dr. Brunshaw notes the applicant reported he had difficulty with sleep, anxiety, and depression prior to the accident, the applicant reports he was able to function on a daily basis and complete all of his activities of daily living without difficulty. She notes that he reports he has lost interest in most of the activities which he used to enjoy and that he is incapable of deriving pleasure from previously enjoyed activities. However, her report does not note what these activities were, the frequency he engaged in them, and the importance of these activities to him.

19Her report further notes the applicant reports that he was able to work prior to the accident⁹ and that he worried the impact of his pain will affect his future functionality and employment, as his “job is physically demanding”¹⁰. Dr. Brunshaw concludes it would be unreasonable to expect the applicant would be able to perform his pre-accident activities of daily living.

20An insurance examination (“IE”) was completed by Dr. R. Day, psychologist and a psychological report was issued on September 21, 2017¹¹. Dr. Day diagnosed the applicant with Major Depressive Disorder, Single Episode, Moderate with anxious distress. Dr. Day notes his current psychological condition is significantly related to the accident and its sequelae and a 2016 workplace accident and its sequelae. Dr. Day noted the applicant reported he took anti-depressant medication following his workplace accident in 2016 but denied in participating in regular psychotherapy with a psychologist.

21Dr. Day’s report notes the Applicant reports that post-accident:

i. He was hopeful and almost out of his depressed mood. His depressed mood worsened and the dosage for anti-depressant medication increased. His hope diminished as he worried, he would not get out of bed. He feels sad and wants to cry all the time.

ii. He no longer engages in physically demanding activities due to pain and numbness in his first two fingers of his left hand all the time.

iii. Right-side lower back pain, causing him to limp while walking. Right leg femur fracture from 2016 workplace injury was 75% healed following surgery six months prior. He reports strength in his right leg is not good due to his low back pain.

iv. No longer enjoys yoga, socializing, sexual interactions. He does not watch television, or talk to anyone, due to reduced interest and reports reduced appetite and weight loss.

v. Has difficulty sleeping due to pain and negative thoughts, but also reported he sleeps from 10:00 pm to 7:00 am, with no interruptions. He reports he intermittently sleeps or remains in bed throughout the day, unless he goes out for scheduled appointments.

22Dr. Day notes the applicant reported that following his 2016 workplace accident, he supervised workers who worked for him to complete previous jobs, but he reported he has not physically worked on a construction site or taken on any new jobs. Dr. Day notes the applicant’s psychological symptoms have had an “appreciable adverse impact on his daily functioning”, and although significant, they do not prevent him from progressively returning to his activities of daily living¹². He concluded from a psychological perspective; the applicant does not suffer a complete inability to carry on a normal life as a direct result of the accident.

23The respondent submits that Dr. Day did not have the CNRs of the applicant’s family doctor, Dr. Baath to review at the time he completed his assessment. Dr. Baath’s CNRs were produced for the hearing. The CNRs reference that in 2014 the applicant had psychological impairments and was undergoing treatment and that he sustained a right distal femur fracture in 2016¹³. The CNR entry of January 12, 2017 notes complaints related to anxiety and having difficulty controlling his worries following an accident in which he fractured his distal femur. The same entry notes he complains of becoming easily fatigued, irritable, has muscle tension, difficulty concentrating, and sleep disturbances. Approximately one month later, a CNR entry notes that the distal femur fracture two months ago was fixed with plates and screws. Further, Dr. Baath notes the applicant limps while walking and walks with the assistance of a walking stick. Dr. Baath further notes the details of psychological complaints experienced by the applicant for the past 12 weeks¹⁴.

24I find the CNR entries of Dr. Baath referenced above support that a few months prior to the accident, the applicant was experiencing many of the same complaints he reported to Dr. Day and Dr. Brunshaw as being experienced post-accident. With the exception of the applicant reporting to Dr. Brunshaw that post-accident he experiences driver/passenger anxiety. However, Dr. Day notes the applicant reported that he is not experiencing fear or anxiety when traveling as a driver or passenger in a vehicle.

25Dr. Brunshaw notes on page 11 of her report that the applicant’s current diagnoses are partly a result of the accident and she references that he reported ongoing pain resulting from a broken leg prior to the accident. She also references that he developed symptoms of anxiety, depression, and sleep difficulties prior to the accident but notes he was able to function on a day to day basis. She notes he reported he was able to complete all his daily activities prior to the accident and that he was able to work and that he was healthy and strong prior to the accident. I find the CNRs of Dr. Baath do not support that the applicant was physically and mentally strong, and social prior to the accident, especially from the time period of October 2016 onward following his right femur fracture.

26The CNR entry of Dr. Baath, dated October 27, 2017¹⁵ notes the applicant complained to Dr. Baath about being tired and feeling weak. A blood test confirmed he was anemic. I find this evidence supports that the diagnosis of anemia was the cause of the applicant feeling tired and fatigued. The consultation report of Dr. D. Zeldin, dated November 20, 2017¹⁶ references the right distal femur fracture from the 2016 workplace accident and notes the applicant complains of painless clicking in his right knee. He notes the applicant “manages stairs just fine. He tolerates running on a treadmill without difficulty” and lacks a few degrees when trying to do a deep squat. I find this evidence supports the applicant was tolerating physical activity without reporting pain or discomfort.

27Dr. Brunshaw notes the applicant reported he was able to work prior to the accident and he worried about being able to return to work as his job was physically demanding. However, her report provides no details regarding the specific job duties the applicant was able to perform prior to the accident. Dr. Day’s report notes the applicant ran his own construction business but since the 2016 workplace accident, he reported supervising workers to complete previous jobs and no longer worked on the construction site. I accept what Dr. Day has noted which provides a description of the applicant’s job duties prior to the accident. Based on this evidence, I find the applicant was not forthcoming to Dr. Brunshaw regarding the details of the pre-accident work he performed.

28A copy of the employment file was ordered to be produced for the hearing from three years pre-accident to date. This was not produced by the applicant. The applicant advised the respondent that he was not employed during this time period¹⁷. The Notices of Assessment (“NOA”) were produced for the hearing for 2016, 2017, 2018 and a copy of T4 slip for 2019 which notes a significant increase in reported income compared to the years of 2017 and 2018 as reflected in the NOAs¹⁸. The Notices of Assessment reveal a significant reduced income for the years of 2017 and 2018 compared to 2016

29I accept that the applicant was self-employed as the owner of a company during the period in which the employment file was ordered to be produced; from three years pre-accident to present. However, I do not accept that no employment/self-employment exists as the applicant has not advised as such. The Revenue Canada documentation produced establishes the applicant resumed working in 2019 based on the reported T4 income. As the employment file from March 2014 to present was not produced, I am unable to confirm whether the applicant returned to work prior to 2019. I have drawn an adverse inference from the employment/self-employment file not being produced.

30The applicant relies on the chronic pain report completed by Dr. G. Karmy, chronic pain specialist, dated January 27, 2020¹⁹. Dr. Karmy notes the applicant reported he was planning to restart his business following the recovery from his femur surgeries but since the subject accident he is mentally and physically unable to continue with his usual occupation. He is unable to stand for more than 10 minutes without significant pain aggravation. The applicant reported he was limited in his housekeeping duties prior to the accident because of an additional right femur surgery on May 30, 2017²⁰ but intended to resume his housekeeping activities after his recovery. Since the subject accident, he reported he is unable to return to his housekeeping duties as he is unable to perform activities involving repetitive bending forward, sustained stooping position, squatting, kneeling, prolonged standing, walking, and walking up and down stairs. He reported he has difficulties with self care and is unable to perform his pre-accident personal care activities as fast and easily as prior to the accident. Dr. Karmy noted the applicant reported that after his femur surgery he intended to resume going to the gym and gardening again. He was gradually resuming various family activities and meeting with friends prior to the subject accident. Dr. Karmy notes he reports experiencing driver and passenger anxiety since the subject accident.

31The psychological assessment reports of Dr. Brunshaw and Dr. Day both diagnosed the applicant with psychological impairments stemming from the accident. However, the reports are conflicting relating to what the applicant can and cannot do since the accident. For example, Dr. Brunshaw notes the applicant has socialized less since the accident, while Dr. Day’s report notes the applicant reported that he stopped going out since he fractured his femur in 2016. Dr. Brunshaw notes he struggled with personal care tasks such as putting on his shoes. Dr. Day notes the applicant reports he is independent with his personal care tasks but does them a little bit less albeit due to pain and that he denied performing household chores pre and post accident²¹. This contrasts to what was noted in Dr. Karmy’s report which notes the applicant reported that post-accident he has been unable to return to his housekeeping duties.

32I afford little weight to the reports of Dr. Brunshaw and Dr. Karmy. Pursuant to s. 12 (3)(c) of the Schedule, an insurer is not required to pay a NEB for more than 104 weeks after the accident. Both of their reports were issued approximately 10 months past the time period for which the applicant was eligible to claim entitlement to a NEB. I find as a result, their reports do not address the activities the applicant was able to engage in pre accident compared to post accident within the 104 week eligibility period for the NEB.

33The reports of Dr. Brunshaw and Dr. Karmy do not detail the frequency, length and importance of the activities the applicant engaged in pre-accident. I find the applicant has not met his burden of proof regarding entitlement to a NEB. I find the Tribunal decision produced by the respondent, 18-008695 v. Wawanesa Mutual Insurance Company²² is persuasive. In that decision, the adjudicator determined a finding could not be made for the applicant’s entitlement to a NEB. The adjudicator determined the applicant had not met her evidentiary burden of proof to satisfy the legal test for a NEB because the reports relied on by the applicant did not provide a fulsome account of the frequency, length, and importance of the applicant’s activities.

34Lastly, the reports of Dr. Brunshaw and Dr. Karmy note the applicant reported he cannot work. I find this information is contradicted by the 2019 T4 tax return which confirms the applicant was working and reported earnings similar to 2016. As a result of their reports not noting a return to work in 2019, I find their reports do not consider that the applicant returned to work in 2019, or possibly earlier than that date.

35Based on a totality of the evidence, I find the applicant has not proven on a balance of probabilities that he suffers a complete inability to carry on a normal life.

CONCLUSION

36For the reasons I have noted above, I find that:

i. The applicant is not entitled to a non-earner benefit of $185.00 per week from October 17, 2017 to April 10, 2019.

ii. The applicant is not entitled to any interest.

iii. The applicant’s claim is dismissed.

Date of Issue: May 6, 2021

__________________________

Kimberly Parish, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
3. 3Tab 2 of applicant’s submissions – OCF-3 completed by Dr. P. Shah, dated March 23, 2017.
4. 4Tab 3 of applicant’s submissions, OCF-3 dated August 3, 2017.
5. 516-000517 v. Aviva, 2017 CanLII 69312 (ON LAT), at para. 75.
6. 6Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, at para. 9.
7. 7Tab 11 of applicant’s submissions – psychological assessment report of Dr. J. Brunshaw, dated January 10, 2020.
8. 8Ibid, at page 3.
9. 9Ibid, at page 11.
10. 10Ibid, at page 7.
11. 11Tab 5 of respondent’s submissions – psychological IE report of Dr. R. Day, dated September 21, 2017
12. 12Ibid, at page 15, para 4.
13. 13Tab 1 of respondent’s submissions – CNR entry of Dr. Baath, dated June 3, 2014. CNR entry of Dr. Baath, dated October 21, 2016.
14. 14Ibid, CNR of Dr. Baath, dated February 9, 2017, at pages 33, 34.
15. 15Tab 2 of respondent’s submissions – CNR of Dr. Baath, dated October 27, 2017, at page 26.
16. 16Ibid, report of Dr. D. Zeldin, G.P. Sports Medicine, dated November 20, 2017 (contained within CNRs of Dr. Baath), at pages 39-40.
17. 17Tab 7 of respondent’s submissions – email from applicant to respondent providing update on status of productions, dated July 17, 2020.
18. 18Tab 8 of respondent’s submissions – T4 statement for 2019 (employment income $20,250.00), 2018 NOA ($3,879.00, line 150), 2017 ($6,187.00, line 150), 2016 NOA ($19,972.00, line 150).
19. 19Tab 12 of applicant’s submissions – chronic pain report of Dr. Karmy, dated January 27, 2020.
20. 20Ibid, reference to additional surgical procedure following right femur fracture (right distal femur implant removal and right IT band lengthening, at page 5.
21. 21Supra, note 11, at pages 10-11.
22. 2218-008695 v. Wawanesa Mutual Insurance Company, 2019 Can LII 101448 (ONLAT), at para. 15.```