Citation: Wang v. TD Insurance Meloche Monnex, 2022 ONLAT 20-010591/AABS

Licence Appeal Tribunal File Number: 20-010591/AABS

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:

Xiao Fan Wang

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Naguena Alingary, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, XFW, was involved in an automobile accident on November 1, 2018, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2TD denied certain benefits including a non-earner benefit (“NEB”), on the basis that it determined that XFW did not suffer a complete inability to carry on a normal life. XFW disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are in dispute:

a. Is XFW entitled to a NEB in the amount of $185.00 per week for the period of November 30, 2018 to date and ongoing?

b. Is the medical benefit in the amount of $3,701.88 for psychological services, denied May 12, 2020, reasonable and necessary?

c. Is the expense (OCF-6) in the amount of $120.00 for a doctor’s visit, denied December 4, 2019, reasonable and necessary?

d. Is XFW entitled to interest on any overdue payment of benefits?

4In its submissions, TD advised that issues 3 b. and c. have been approved and are no longer in dispute. Accordingly, the decision will focus on the remaining issues in dispute, NEB and interest.

FINDING

5XFW is not entitled to a NEB, as he did not establish that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

6XFW is not entitled to interest.

BACKGROUND

7XFW arrived in Canada on a Student Visa in 2017. The evidence shows that he is currently married.

8At the time of the accident, XFW was an unemployed international student completing his third year of the Master of Business Administration (MBA) graduate program at Concordia University. He graduated from the program in April 2020.

ANALYSIS

There is no entitlement to a NEB

9Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged in before the accident.”

10Heath v. Economical Mutual Insurance Company, 2009 ONCA 391(“Heath”) provides the framework for the NEB analysis into whether an insured person suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured person identifies as important. In addition, where pain is present, it should practically prevent them from engaging in those activities.

11Applying the Heath factors, I find XFW is not entitled to a NEB for the period in dispute as he has not demonstrated a complete inability to carry on a normal life as a result of the accident.

12My determination is based on the following evidence:

a. XFW sought no medical attention until nearly one-year post-accident;

b. Approximately one year post-accident, in an October 18, 2019 OCF-3, chiropractor, Dr. Palantzas, indicated that XFW suffered a complete inability to carry on a normal life. This statement is unsupporterd by any evidence. There is no indication he suffered an inability to continue his post-secondary education program;

c. There are no other records from Dr. Palantzas;

d. A few days after the OCF-3 was prepared, during an October 22, 2019 visit to family physician, Dr. Li, XFW reported that he has “learned to let go”, socialize, play games and manage stress. There are no additional records from Dr. Li;

e. A May 2, 2020 psychological report from Dr. McDowall contains no indication of a review of medical records, and is based solely on XFW’s self-reporting, self reporting that I note is at odds with his other statements; and

f. An October 1, 2020 occupational therapy report (for the purposes of attendant care and housekeeping, neither of which are in dispute) from Raymond Wong, indicated that XFW was living with his wife. XFW was able to complete self-care tasks, prepare and cook meals, wash dishes, and clean house. Mr. Wong determined that XFW did not require attendant care.

13TD relies on the reports of its insurer examination (“IE”) assessors in support of its denial of the NEB. It points to the following evidence:

a. Dr. Manhas, General Practioner – report dated August 20, 2020

i. XFW reported that he did not seek medical attention for accident-related injuries for one year after the accident;

ii. He attended physiotherapy once a week in November 2019, but stopped attending two months later for unexplained reasons;

iii. Although XFW complained of neck and back pain, he reported to be fully independent with self care tasks, household chores, did not require time off from school, and had resumed driving;

iv. Dr. Manhas opined that XFW suffered soft tissue injuries, which is in line with the injuries reported in the OCF-3 of Dr. Palantzas; and

v. Dr. Manhas concluded that XFW did not suffer a complete inability to carry on a normal life.

b. Andrew Philips – Occupational Therapist – report dated August 20, 2020

i. Noted that XFW had resumed all of his normal life activities, including graduating from the MBA program in May 2020, driving, and completing housekeeping tasks;

ii. XFW demonstrated the necessary functional abilities to independently engage in all associated tasks, with some intermittent pain;

iii. XFW reported he was not experiencing any emotional concerns, and did not require any interventions; and

iv. XFW reported that he was not seeing his family physician; and

v. Mr. Philips did not observe any difficulties in information processing, comprehension or expression. All range of motion testing was found to be within normal functional limits.

c. Dr. Syed – Psychologist – report dated August 20, 2020

i. Dr. Syed opined that the evaluation indicated “a man suffering from concerns with elevations on symptom validity interpreted as a “cry for help” as opposed to intentional feigning;”

ii. XFW shows a propensity towards symptom magnification surrounding his pain experience;

iii. XFW reported experiencing post-traumatic stress, notably accident flashbacks, and anxiousness when seated as a driver or passenger;

iv. Dr. Syed diagnosed XFW as suffering from an adjustment disorder with mixed anxiety and depressed mood;

v. XFW indicated he is not interested, motivated or willing to undergo psychological therapy;

vi. When queried, XFW reported that he did not believe it will work. Based on the experiences of friends going through psychological therapies, it was not working for them or worth their time;

vii. Dr. Syed opined that while XFW is dealing with some psychological distress, it is not of a sufficient incapacitating degree, therefore, no functional limitations are evident; and

viii. Dr. Syed concluded that XFW was not considered to be suffering from a complete inability to carry on a normal life.

14On the evidence, I am not persuaded that XFW suffers a complete inability to carry on a normal life as a result of the accident. I am not directed to any pre-accident medical records, that would provide a comparative pre-and post-accident health history. In fact, on self-reporting, XFW has a rather unremarkable medical history, and the post-accident medical records provided, are almost non-existent for any post-accident treatment. He has continued on with his life, substantially in all areas of daily living, and the completion of his MBA program. This level of activity is not indicative of someone who suffers from a complete inability. There are no indications of accommodations required to complete his degree program, taking time off of school or that his grades suffered to the point of failure.

15The remainder of XFW’s life is also not indicative of suffering a complete inability, as there is no evidence of any functional limitations preventing him from engaging in any or all of his pre-accident activities. To this end, XFW appears to have also gotten married in the period after the accident. To say that XFW suffers a complete inability would be a gross exaggeration given his complete ability to carry on in largely the same manner that he did pre-accident. Despite having intermittent pain while engaging in his activities of daily living, I find that XFW has managed to be very able to carry on a normal life, in spite of the accident.

16Whether the result of the previously disputed OCF-18s achieved the goals set out in them, or the passage of time healed his injuries, on the evidence, XFW has demonstrated a high level of function. This ability does not meet the requirements of the strict NEB test.

17For the reasons stated above, XFW has not demonstrated on a balance of probabilities that he suffers a complete inability to carry on a normal life, as a result of the accident. Accordingly, XFW is not entitled to a NEB. No interest is payable under s. 51.

CONCLUSION

18XFW is not entitled to payment of a NEB for the period in dispute. As no benefits are overdue, no interest is payable.