Citation: Zhao v. TD General Insurance Company, 2022 ONLAT 20-010875/AABS

Licence Appeal Tribunal File Number: 20-010875/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:

Yu Jie Zhao

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Alyson Spaling, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Yu Jie Zhao, the applicant, was involved in an automobile accident on October 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016)¹ ("Schedule"). The applicant was denied certain benefits by TD General Insurance Company, the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for resolution of this dispute.

ISSUES

2The issues to be decided are:²

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from November 16, 2018 to date and ongoing?

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

iii. Is the applicant entitled to an award pursuant to s. 10 of Regulation 664?

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit for the period in dispute, because he has not demonstrated that he has a complete inability to carry on a normal life as a result of the accident;

ii. No interest is payable;

iii. The respondent is not liable to pay an award under Regulation 664.

Non-Earner Benefit ("NEB")

4The test for entitlement to an NEB is for the applicant to show that he sustained an impairment as a result of the accident and that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident and does not qualify for an income replacement benefit.³ Section 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.

5Both parties have cited the seminal case of Heath v. Economical Mutual Insurance Company⁴ where the Ontario Court of Appeal has provided an analysis of the proper approach to interpret the test for eligibility to receive an NEB. The principles from Heath are 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; the duration of which 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 his accident-related injuries continuously prevent him from engaging in substantially all of his pre-accident activities. This means that the disability or incapacity must be uninterrupted.

v. "Engaging in" should be interpreted from a qualitative perspective. 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.

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.

6In order to properly assess whether the applicant is entitled to an NEB, he must establish what his life was like before and after the accident. Greater weight may be placed on activities that were more important to the applicant's pre-accident life.

7The applicant submits that he is completely unable to carry on a normal life, due to his physical pain and psychological impairments. To establish his physical impairments, the applicant relies on a Disability Certificate (OCF-3) dated November 21, 2018 prepared by Dr. James Fung, chiropractor, and Treatment and Assessment Plans (OCF-18s) dated May 4, 2019, July 13, 2019 and September 7, 2019, prepared by Dr. Georgia Palantzas, chiropractor. Dr. Palantzas noted that the applicant had limited functional ability, suffered from chronic pain, headaches, dizziness, decreased range of motion of the neck, shoulders, back and hip, fracture of the humerus, sprain and strain of the neck, thorax, elbow, lumbar spine, pelvis, shoulder, ankle and foot, among other impairments.

8With respect to psychological impairments, the applicant submits that he has been diagnosed by Dr. Sharleen McDowell, psychologist, with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia (Travel)⁵. The applicant further notes that the respondent's Insurer's Examination (IE) assessor Dr. Fabio Salerno, also diagnosed the applicant with Adjustment Disorder with Depressed Mood in his IE Report dated January 25, 2019.⁶ As a result of these physical and psychological impairments, the applicant submits that he is unable to complete his pre-accident activities of housekeeping and caregiving duties, such as grocery shopping, laundry, meal preparation, home cleaning and caring for his grandchildren.

9The respondent contends that the applicant does not suffer from a complete inability to carry on a normal life. It relies on the findings of its IE assessors, physiatrist Dr. Farooq Ismail, psychologist Fabio Salerno and occupational therapist Mr. Rod Pritchett, all of whom opined that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident. The respondent submits that the applicant is still able to do many of his pre-accident activities, albeit with some difficulties.

10To establish an entitlement to an NEB, an applicant must discharge their burden of proving that they are prevented from engaging in "substantially all" of the pre-accident activities in which they ordinarily engaged.⁷ In doing so, the applicant must provide evidence of the frequency and time commitments of his pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident.

11I find that the applicant has provided limited evidence on his pre-accident activities and how his accident-related impairments have led to a complete inability to carry on with them post-accident. The applicant submits that some of his pre-accident activities included: housekeeping tasks such as meal preparation, cleaning, laundry and yard maintenance, grocery shopping, caring for his grandchildren, going on trips to the park, walks and socializing with friends and family.⁸ However, the applicant does not specify what period of time he engaged in these activities and the frequency. While this list of activities is helpful, the applicant offers no further detail or comparison of the amount of time he spent on each of these activities or on how much value or importance he placed on each activity. In the absence of this information, it is difficult to compare his pre-and post accident abilities with respect to the activities he ordinarily engaged in or valued, as required by Heath.

12Although not explicitly required by the legislation, the applicant provides no evidence, such as an affidavit or viva voce evidence, that speaks to his pre-accident activities, or corroborating evidence establishing the frequency and importance of these activities. As a result, I only have the assertions of the applicant that he now has a complete inability to carry on a normal life, with little evidentiary support.

13The IE reports are unsupportive of the applicant's claim for an NEB. All three IE assessors opined that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. With respect to physical impairments, the physiatry IE assessment of Dr. Ismail found that the applicant sustained soft-tissue injuries of the cervical spine (WAD II), bilateral shoulders and lumbar spine.⁹

14Although the applicant submits that he suffered a more serious physical impairment, as evidenced by a subsequent X-ray which found an undisplaced fracture of the humerus¹⁰, I agree with the respondent's submissions that the X-ray report noted that this was a "suspected" fracture and that a repeat X-ray was recommended to confirm the findings.¹¹ No evidence of follow-up imaging was provided by the applicant. In addition, the respondent submits that in the numerous self-reports to assessors and treatment providers, the applicant has not reported right-sided arm or elbow symptoms other than a single brief mention in Dr. Palantzas' Functional Abilities Evaluation Report.¹² The applicant does not direct me to any evidence establishing that right-sided arm or elbow pain has been a consistent physical impairment affecting his ability to engage in pre-accident activities.

15While I acknowledge the applicant's pain complaints and psychological diagnosis, from the evidence, it does not appear that these impairments render the applicant completely unable to engage in his pre-accident activities.

16The applicant reported to Dr. Ismail that he had returned to cooking and, with the exception of laundry, resumed helping with housekeeping duties, although "less often".¹³ Further, Dr. Salerno noted in his psychological IE Report that the applicant reported that he was continuing with housekeeping and home maintenance tasks, cooking, loading the laundry machine and sweeping, albeit with pacing. The applicant also reported to Dr. Salerno that he had resumed some caregiving tasks for his grandchildren, including changing diapers, making meals for them, supervising them and taking them to the toy store.¹⁴ Finally, Mr. Pritchett in his Occupational Therapy (OT) IE Report dated January 7, 2019, noted that the applicant was able to reengage with his homemaking, caregiving and leisure activities, though at a slower pace and with breaks, due to pain and fatigue.¹⁵

17The applicant submits that a subsequent in-home assessment conducted by Mr. Pritchett to determine attendant care benefits (ACB), supports his position that he is unable to engage in substantially all of his pre-accident activities. In his April 30, 2019 OT In-Home Assessment Report, Mr. Pritchett found that the applicant was entitled to eight hours per week of ACB to assist with: management of medication, ensuring consistent scheduling of AC services, reminders to engage in activities and meal preparation that involves the use of appliances.¹⁶

18I do not find the applicant's argument to be persuasive, as only one the applicant's reported pre-accident activities was included on the list of activities recommended by Mr. Pritchett for ACBs - meal preparation. I also note that Mr. Pritchett recommended an ACB only with respect to meal preparation with an appliance. Given that Mr. Pritchett recommended assistance only for one of the applicant's stated pre-accident activities, and only for meal preparation that involves an appliance, I do not find that Mr. Pritchett's April 30, 2019 Report undermines his earlier conclusion in his OT IE Report dated January 7, 2019, that the applicant was not entitled to an NEB.

19Based on the principles in Heath, I find that despite some restrictions, the applicant is engaging in many of his pre-accident activities such as housekeeping tasks, some meal preparation, caring for his grandchildren, going to the toy store, walks and socializing with family. It is not sufficient for the applicant to demonstrate that there were changes in his post-accident life. Rather, the applicant must establish that those changes amounted to being continuously prevented from engaging in substantially all of his pre-accident activities. 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.

20The applicant submits that pain is a barrier to him participating in his pre-accident activities. However, even if some of these activities have been done with some difficulty or modification, this still does not meet the stringent NEB test of "complete inability". The applicant relies on the Tribunal decision 16-000879 v. Unifund Assurance Company¹⁷ as support for the principle that if an applicant is experiencing significant restrictions, he might not be "'engaging in' that activity". However, the applicant has not led sufficient evidence to establish that he suffers from such significant restrictions of substantially all of his pre-accident activities. I find the reasoning in, M.H. v Certas Direct Insurance Company, cited by the respondent, to be persuasive on this issue. In this decision, the adjudicator held that:

It is not enough for the applicant to demonstrate that she has sustained injuries and that she suffers from physical pain. What the applicant must show is that the injuries and associated pain have significantly interfered with almost all of her pre-accident daily activities. A description of specific activities and how the accident has affected her ability to do them is required for that analysis.¹⁸

21The applicant has not provided such specific details to establish that his self-reported functional deficits rise to the level that they continuously prevent him from engaging in substantially all of his pre-accident activities.

22As such, I find that the applicant has not met his onus to prove, on a balance of probabilities, that he has a complete inability to carry on a normal life as a result of the accident.

Interest

23Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

24As no benefits are overdue, no interest is payable under section 51.

Award

25Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

26As I found that the applicant is not entitled to an NEB, there was no payment unreasonably withheld or delayed. As such, the applicant is not entitled to an award.

CONCLUSION

27For the reasons stated above, I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. No interest is payable;

iii. The respondent is not liable to pay an award under Regulation 664.

Released: December 13, 2022

__________________________

Ulana Pahuta

Adjudicator

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2In his written submissions, the applicant withdrew his claims for chiropractic, psychological and acupuncture services, items no. 2-4 as listed in the Case Conference Report and Order dated May 13, 2021. As such, I will not be considering these issues as part of this written hearing.
3. 3Section 12(1) of the Schedule.
4. 42009 ONCA 391, 2009 ONCA391.
5. 5Applicant's Submissions, Tab 7 – Records from Somatic Assessments, Psychological Assessment Report of Dr. McDowell, dated April 19, 2019
6. 6Applicant's Submissions, Tab 8 – IE – Multidisciplinary Report dated January 25, 2019, p.15
7. 716-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para 17.
8. 8Applicant's Submissions at paras 15, 31, 32.
9. 9Respondent's Submissions, Tab 4, IE Physiatry Report of Dr. Ismail dated January 4, 2019.
10. 10Applicant's Submissions, Tab 5, X-Ray of Right Elbow dated July 10, 2019
11. 11Ibid.
12. 12Respondent's Submissions, at para 9.
13. 13Respondent's Submissions, Tab 4, IE Physiatry Report of Dr. Ismail dated January 4, 2019.
14. 14Respondent's Submissions, Tab 3, IE Psychology Report of Dr. Salerno dated January 15, 2019.
15. 15Respondent's Submissions, Tab 6, IE OT Report of Mr. Pritchett dated January 7, 2019.
16. 16Applicant's Submissions, Tab 18, IE OT In-Home Report dated April 30, 2019.
17. 1716-000879 v. Unifund Assurance Company, 2017 CanLII 9811 (ON LAT).
18. 1816-003657 v Certas Direct Insurance Company, 2017 CanLII 59506 (ON LAT) at para 14.```