Roumia v. Belair Insurance, 2022 CanLII 65653

Licence Appeal Tribunal

Citation: Roumia v. Belair Insurance, 2022 ONLAT 19-006875/AABS

Licence Appeal Tribunal File Number: 19-006875/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:

Mhd-Burhan Roumia Applicant

and

Belair Respondent

DECISION [AND ORDER]

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Mhd-Burhan Roumia, Applicant Georgiana Masgras, Counsel

For the Respondent: Kyle Bedford, Adjuster Darrell March, Counsel Ilena Corda, Law Clerk

Court Reporter: Joni Ehamo

HEARD: by Videoconference: June 13, 2022-June 15, 2022

REASONS FOR DECISION [AND/OR ORDER]

BACKGROUND

1The applicant was involved in an accident on November 3, 2017. He sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2As per the case conference reports and orders of Adjudicator Griffith dated April 23, 2021, and October 15, 2021, this application proceeded to a videoconference hearing before me.

ISSUES WITHDRAWN

3The applicant withdrew the following issues:

1. Is the applicant entitled to chiropractic services recommended by Spinetec Healthcare Solutions as follows: a. $1,385.00 in a treatment plan (“OCF-18”) submitted on March 26, 2018, and denied on April 5, 2018? b. $5,385.00 in an OCF-18 submitted on July 16, 2018, and denied on July 27, 2018?

2. Is the applicant entitled to $7,090.00 for psychiatric services recommended by Spinetec Healthcare Solutions in an OCF-18 submitted on July 16, 2018, and denied on July 27, 2018?

3. Is the applicant entitled to $6,700.00 for physiotherapy recommended by Spinetec Healthcare Solutions in an OCF-18 submitted on July 16, 2018, and denied on July 27, 2018?

ISSUE AMENDED

4At the hearing, the applicant sought to amend the time period for the non-earner benefit issue. The respondent objected because he believed that the parties should adhere to what was listed in the case conference report and order. The applicant did not bring a request to amend it prior to the hearing. The case conference report and order notes that orders are subject to the hearing adjudicator’s discretion. It is important to ensure that the Tribunal makes an order based on the correct time period. I exercised my discretion and amended it accordingly. As such, the time period for the non-earner benefit will be from December 1, 2017 to November 3, 2019.

ISSUES IN DISPUTE

5The issues to be decided in the hearing are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 1, 2017 to November 3, 2019?

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

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

MOTIONS/OBJECTIONS

Motion #1: Exclusion of the applicant’s hearing brief and supplemental document brief.

6The respondent filed a motion to exclude the applicant’s hearing brief and list of witnesses. The respondent submitted that the applicant’s document brief was served on May 25, 2022, two days following the ordered deadline of May 23, 2022. On June 10, 2022, the applicant filed a supplemental document brief.

7The applicant filed a motion on June 10, 2022 for an order that the Tribunal exercise its discretion to admit the applicant’s document brief and supplemental document brief. It was submitted that there would be no significant prejudice on the respondent. Moreover, it is in the interest of just, proportional, and efficient dispute resolution that the hearing proceeds on the merits.

8The respondent’s request was denied. The applicant’s motion was granted. The brief was served only two business days late and approximately two and a half weeks before the start of the hearing. I did not find any prejudice to the respondent as the documents contained in the brief were already in the respondent’s possession. Moreover, the supplemental document brief contained the CVs of the expert witnesses and acknowledgments of expert duties. As such, the applicant’s document brief and supplemental document brief were admitted into evidence.

MOTION #2: Dismissal and costs

9The applicant did not attend the hearing on June 13, 2022. The counsel for the applicant advised the respondent and the Tribunal that the communication between his office and the applicant has broken down and therefore they could no longer represent the applicant. The decision to remove themselves as counsel of record was made on Sunday June 12, 2022 at 8:00 p.m. The applicant’s counsel did not notify the respondent or the Tribunal until the morning of the hearing.

10The respondent’s counsel informed the Tribunal and the applicant’s counsel that he would be filing a motion to dismiss the application with costs. The matter was adjourned to the following day. Later that day, the applicant’s counsel advised that they were prepared to proceed and that the applicant would be in attendance the following day. It was also confirmed that the applicant would be withdrawing some issues.

11The respondent filed a motion for an order dismissing the application with costs for failing to attend the first day of the hearing. It was submitted that the applicant had abandoned his application and that he had acted unreasonably, frivolously, vexatiously and in bad faith by wasting the time of the Tribunal and the respondent’s counsel. The respondent submitted that the application should be dismissed with prejudice and with costs awarded to the respondent.

12The applicant submitted that apart from his failure to attend on the morning of June 13, 2022, there is nothing in the evidentiary record to warrant a finding that he has abandoned his application. Dismissing an application as abandoned pursuant to Rule 3.4 is only warranted where there is evidence of a total and utter lack of communication from the applicant in relation to his willingness and ability to participate in the proceedings.

13The respondent’s motion is denied. I find that the applicant did not abandon his application because he attended the hearing after speaking with his counsel.

14With respect to costs, Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) provides that a party may make a request to the Tribunal for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. Rule 19.5 sets out the powers of the Tribunal in deciding whether to order costs and the amount of costs. The Tribunal shall consider all relevant factors including:

i. The seriousness of the misconduct;

ii. Whether the conduct was in breach of a direction or order issued by the Tribunal;

iii. Whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process;

iv. Prejudice to other parties; and

v. The potential impact an order for costs would have on individuals accessing the Tribunal system.

15While I agree that not being notified regarding the breakdown in communication and the applicant not attending the hearing is frustrating for the respondent, it does not rise to the level that would attract costs.

16Breakdowns in communication do occur between legal representatives and their clients. The applicant’s counsel rectified the issue and made sure that the applicant was in attendance. The respondent did not provide any evidence to show that the applicant was unreasonable, frivolous, vexatious, or acting in bad faith. Therefore, based on the above I find that an order for costs is not warranted

OBJECTION: Qualifying the witness

17The respondent’s counsel objected to the Tribunal qualifying Dr. Pilowsky as an expert witness. The argument was based on the fact that there was some information regarding her status with the College of Psychologists of Ontario. The Tribunal declined the respondent’s request. Pursuant to Rule 10.4, a party intending to challenge an expert’s qualifications, report, or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing and must file a copy with the Tribunal.

18On May 25, 2022, the applicant served the Tribunal and the respondent with the list of witnesses, which included Dr. Pilowsky. The respondent had ample opportunity to raise its objection as an issue. It is not appropriate to do so right before the expert’s testimony. As such, the Tribunal denied the respondent’s request and qualified Dr. Pilowsky as a witness.

MOTION #3: Certificate and articles of incorporation

19On June 13, 2022, the applicant filed a motion to admit the certificate and articles of incorporation dated June 23, 2016, February 15, 2018 and February 12, 2019. The applicant filed these documents because his stake in the restaurant was raised during the cross-examination at the hearing. The applicant submitted that the evidence demonstrates that the applicant was not a business owner or stakeholder in any of the relevant corporations during the period of entitlement.

20The respondent submitted that it would suffer prejudice should these documents be submitted into evidence. It was submitted that this is a clear attempt at trial by ambush on the part of the applicant, to deprive the respondent of a fair opportunity to respond. It is a fundamental tenet of law that the respondent is entitled to respond to the case made against it, and the applicant’s service of additional documents during the hearing prevents the respondent from having an adequate opportunity to respond to the evidence the applicant intends to rely on at the hearing. This would rob the respondent of the procedural fairness it is entitled to.

21The applicant’s motion is granted. I find the evidence to be relevant. At the hearing, the Tribunal recognized the prejudice that the respondent would face due to the late filing of the motion. The respondent was provided additional time to prepare submissions and obtain evidence in support of its respective position. In my view, this remedied the prejudice that was faced by the respondent.

RESULT

22I find that the applicant is not entitled to the non-earner benefit, award and interest claimed.

ANALYSIS

Issue i: Non-earner benefit

23The test for entitlement to a non-earner benefit is set out in section 12(1) of the Schedule. The applicant must prove that she suffers from a complete inability to carry on a normal life within 104 weeks of the accident.¹ 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 the 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.²

24In order to establish entitlement to non-earner benefits, a variety of factors must be taken into consideration. The Court of Appeal confirmed in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, at para. 50, that the analysis of the evidence should include the following³:

i. A comparison of the applicant’s activities and life circumstances before and after the accident.

ii. A consideration of pre-accident life and circumstances involves more than a snapshot of life in the timeframe immediately before the accident, but rather an assessment of the activities and circumstances over a reasonable period prior to the accident.

iii. All of the pre-accident activities in which the applicant ordinarily engaged in should be considered. Greater weight may be assigned to those activities which the applicant identifies as being important in his pre-accident life.

iv. It is not sufficient to demonstrate that there were changes in post-accident life. Rather, it is incumbent to establish that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.

v. To look at whether the applicant is “engaging in” an activity, the activity must be viewed as a whole. The manner in which an activity is performed, and the quality of performance post-accident must also be considered.

vi. An inquiry into whether the degree of pain experienced either at the time or subsequent to the activity is such that the applicant is practically prevented from engaging in those activities.

Applicant’s testimony

25The applicant was involved in a car accident on November 3, 2017. He testified that he started feeling pain in his neck, back, head, right shoulder and right ankle later that day in the evening. He testified that he sought medical attention that week. He stated that “I remember them referring me to physio, pain doctors, psychiatrists, MRIs, x-rays, ultrasounds, specialist in the Hamilton hospital Dr. Tunks for pain management. He told me I couldn’t do anything. I’m trying to make a change and the insurance company didn’t help me.” The applicant previously sustained an ankle injury and was getting off medication for it. The applicant testified that his impairments got worse after the accident.

26He stated that:

I did have a shoulder injury and ankle injury before. Shoulder had been recovered and ankle was recovering. Beginning of 2022 and end 2021, I was trying to do something because it was hard. My life has dramatically changed. Yes, I have been dealing with pain and meds that I don’t want to take. If you knew the side effects of the meds, you would try to help me. I gave the country the best of me and worked since day one. I have pride. I supported my family. My pride was destroyed. The first question was why me. You would be defending me if you knew what happened. My life is not normal.

27The applicant testified that nothing has helped his pain and that he does not want to be on medication. He has given up on doctors and treatment. He wished that he could go back and prevent the accident.

28During the cross-examination, the applicant was questioned about his involvement with Shawarma Royale. The applicant denied being the owner. However, the respondent submitted multiple social media posts, Tik Tok videos and surveillance. I have assigned less weight to most of this evidence because it from 2021 to 2022. It does not correspond to the time period in dispute. However, there are two Tik Tok videos which I am relying on.

29The first video is of the applicant celebrating the fourth-year anniversary of Shawarma Royale with his family. The date of this video is February 6, 2022. Four years from this date would be February 6, 2018. The caption states “me at my 1st and only location.” There are pictures of him with an arrow pointing to him in the kitchen of the restaurant in chef attire. Another Tik Tok video dated January 18, 2022 is captioned “My journey to success”. In this video, the applicant is talking about how he took a risk and started the restaurant.

30In order to refute these allegations, the applicant submitted the articles and certificate of incorporation for 2620767 ONTARIO INC and 2524744 ONTARIO INC. It was submitted that they do not list his name. However, it is unclear whether the corporations are related to Shawarma Royale. The applicant did not provide any evidence to show that Shawarma Royale was incorporated as a numbered company. As such, I am assigning less weight to this evidence.

31Based on the evidence submitted by the respondent, it appears that the applicant owned the restaurant during the time period in dispute. I do not find the applicant’s testimony to be credible. If he was not the owner, it raises the question why he is on social media talking about his journey of starting a restaurant and celebrating the fourth-year anniversary.

32Moreover, the applicant’s testimony did not address whether he meets the test set out in Heath. He did not provide an overview of his activities and life circumstances before and after the accident. Heath also requires an assessment of the applicant’s pre-accident activities and life over a reasonable period of time prior to the accident. The applicant has not advanced any evidence or submissions regarding his pre-accident activities and how his impairments as a result of the accident have led to a complete inability to carry on with them post-accident.

33There is no information regarding how much time he spent on each of his pre-accident activities or on how much value and importance he placed on each. In the absence of this information, it is difficult, if not impossible, to compare his pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued. However, for completeness, I turn to the medical evidence of the applicant and respondent.

34In support of his case, the applicant is relying on the clinical notes and records (‘CNRs’) of Dr. Eric Earl, family physician, Dr. Eldon Tunks, psychiatrist and a psychological assessment from Dr. Judith Pilowsky, psychologist, dated June 12, 2018.

CNRs of Dr. Tunks

35I do not find the CNRs from Dr. Tunks to be helpful. The CNRs do not mention the subject accident. For example, the consultation report from Dr. Tunks dated August 10, 2018 notes that the applicant reported to Dr. Tunks that he was perfectly well until he was jogging, and his foot went into a pothole. This injured his right ankle which caused injuries to the ligaments and tendons. It also caused local inflammation and immediate onset of pain in the ankle with oversensitivity. This has persisted since. It also states that he had no previous or other history of accidents. He became depressed as a result of the impairment, pain and inability to work. Dr. Tunks opined that his mental status suggests distress consistent with pain. The PHQ-9 at a score of 21 reflects a combination of anxiety, depression and general dysphoria.

36The applicant informed Dr. Tunks that he used to be a physically vigorous individual and that he had lost 14 pounds due to the forced inactivity following his injury. With respect to his activities of daily living, he is dependent on a cane and unable to put any pressure on the right foot. Dr. Tunks stated “He is able to dress, eat independently but not shop and he sits or is recumbent through the day or reads. His work up to the time of the injury was in management, sales and brokerage and he has not been able to get back to any of that, so he is now on ODSP. He divorced after his injury.” This report does not mention the November 3, 2017 accident. The report suggests that his injuries are in relation to the jogging incident, not the subject accident. As a result, this report does not support the applicant’s position.

37The chronic pain clinic assessment dated August 24, 2018 notes that the applicant reported that he injured his ankle in October 2015 while jogging. He also complained about left-sided lower back pain which he had over the last year. The impression and plan section notes that the applicant started complaining of right ankle and foot pain which started since he twisted his ankle in October 2015. The pain is significantly affecting his quality of life and limiting his daily activities. The issue with this report is that there is no mention made of the subject accident.

38The clinic note from Dr. Tunks dated August 24, 2018 mentions that the applicant saw him for his right ankle, foot pain and lower back pain. This report makes no mention of the subject accident. Rather, Dr. Tunks talks about the October 2015 pothole incident.

39The CNRs dated January 8, 2019 state “I last saw Mr. Roumia on October 22nd. Since then, he had lumbar spine MRI showing minor degenerative changes with right disc protrusion L5-S1 and a bulge in ligamentum flavum hypertrophy L4-5 without foraminal or central stenosis.” The CNRs do not mention the subject accident. Moreover, these changes do not appear to be connected to the accident.

40I do not find Dr. Tunks’ CNRs to be helpful in determining whether the applicant is entitled to the non-earner benefit. If the injuries from the subject accident were causing the applicant to have issues with functionality, it raises the question why he did not discuss this with Dr. Tunks. During the testimony, he was asked whether Dr. Tunks had asked him about where his problems came from. He stated that “I’m surprised that the doctor didn’t mention that. I’m not sure if I told him. I must have told him something.” I am not persuaded that he did. In my view, the issues reported by Dr. Tunks were stemming from the 2015 incident; not the subject accident.

Diagnostic imaging found in the CNRs of Dr. Earl

41At the hearing, the applicant’s counsel directed the Tribunal to diagnostic imaging in support of the applicant’s case. It was submitted that there was persistent neck and shoulder pain and that there was a difference before the subject accident. I find that the diagnostic imaging does not support the applicant’s case.

42For example, the report of Dr. James Haroun, radiologist, dated December 14, 2017 notes a normal ultrasound of the right shoulder. The ultrasound of the right side of the applicant’s neck revealed no abnormalities. The lumbar spine was normal. There was no significant abnormality detected in the thoracic spine. There was mild degenerative disc disease in the cervical spine. There was no significant pathology seen in the right knee.

43The right shoulder ultrasound dated October 9, 2018 shows that there is evidence of a partial thickness articular surface tear of the supraspinatus tendon. Dr. Vikram Wadhwa, radiologist, compared it to a previous ultrasound performed on December 14, 2017. He noted that the tears were not present at the time of the December 14, 2017 ultrasound. I am not persuaded that the tears were caused by the accident because the ultrasound that was conducted a few weeks after the accident did not show any tears. I am assigning less weight to this report for this reason.

44The MRI dated November 8, 2018 found that there are minor degenerative changes at the lower 2 lumbar levels without significant canal or foraminal stenosis. I am assigning less weight to this MRI because it does not tie the changes to the subject accident.

45The MRI of the right ankle dated November 18, 2018 found that there is a new small ganglion on the plantar aspect of the midfoot. The remainder of the examination appeared to be unchanged. The report does not tie the ganglion to the accident. I am assigning less weight to this MRI because I do not find that the ganglion is a result of the accident.

Psychological report from Dr. Judith Pilowsky dated June 12, 2018.

46In her psychological report dated June 12, 2018, Dr. Pilowsky diagnosed the applicant with post-traumatic stress disorder with phobic avoidance to driving and being a passenger, major depressive disorder (single episode) with mood congruent psychotic features and somatic symptom disorder with predominant pain, (persistent, moderate). Dr. Pilowsky concluded that the applicant suffered a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident since he is continuously precluded from engaging in essentially all of the activities in which he ordinarily engaged prior to the subject accident.

47These activities included caring for his father, socializing, and adhering to his regular household duties and recreational activities. She opined that “Mr. Roumia is precluded by his psychological impairments that include significant depressive symptoms, sleep deprivation, difficulty coping with pain and post-traumatic anxiety, among others.”

48I am not persuaded by her opinion because she relied on the applicant’s self-reporting. She did not review any other medical documentation such as the family doctor’s clinical notes and records and the insurer examinations. During her cross-examination, she confirmed that she did not call his doctors or anyone else to further inquire about his conditions. Moreover, she did not have any records available. As such, I am assigning less weight to her opinion.

Respondent’s evidence

49In denying the applicant, the respondent is relying on the reports of Dr. Steven Taylor, general practitioner, Ms. Leslie Hisey, occupational therapist, and Dr. Velen Sivasubramanian, psychiatrist. In his report dated January 23, 2018, Dr. Taylor concluded that the applicant suffered from whiplash grade II, lumbar strain, and thoracic strain as a result of the subject accident. He opined that the prognosis is good for additional improvement over the next three to nine months. He stated that “while the claimant has some functional impairment related to his injuries, these limitations are not so severe that they would render him incapable of carrying on a normal life. From a musculoskeletal point of view, he does not suffer a complete inability to carry a normal life as a result of the injuries sustained in the accident.”

50Dr. Taylor was provided with additional information. In his musculoskeletal addendum dated May 18, 2018, he stated that “Having reviewed the additional information provided by the insurer does not change my opinion as previously expressed in my original report. It continues to be my opinion that the claimant has suffered minor injuries, namely WAD2 strain, thoracic and lumbar strain. Furthermore, it continues to be my opinion that the claimant does not suffer from a complete inability to carry on a normal life.”

51In the Occupational Therapy Assessment dated February 6, 2018, the applicant told Ms. Hisey that before the accident, he was unable to participate in his leisure activities because of a right foot/ankle injury. He explained that he was running on the sidewalk and the whole square center piece was missing. He stepped into the empty space and twisted his ankle. He damaged tendons on both sides of his ankle. He participated in physiotherapy treatment and followed up with the doctor who told him that nothing more can be done.

52Ms. Hisey noted that:

He was not gainfully employed at the time of the accident secondary to his ankle injury in 2015. He continues to drive, only short distances. He cannot tolerate longer than 5-10 minutes at a time secondary to his neck and back pain. He is more hypervigilant now when he drives as he is concerned that he may get into another accident. He continues to take care of his financial duties independently.

53The applicant informed Ms. Hisey that prior to the accident, he was reportedly independent with his personal care tasks which he continues to complete. He was driving and continues to drive himself short distances. He was attending the mosque and praying daily; he no longer attends mosque however reports praying daily having to sit up. He was not involved in any active leisure tasks pre-accident secondary to his right ankle injury which occurred pre-subject accident. He reported completing all of his homemaking tasks at home and the caregiving tasks of his father pre-subject accident and reports he is no longer able to do so. He admitted that he could make his bed and makes simple meals for himself if needed or if he is hungry. He continues to complete his financial duties which are a cause of great stress since he stopped working post right ankle injury.

54Based upon the objective information obtained during this assessment, clinical presentation, documentation provided for review including the multidisciplinary report, and subjective reports from the applicant, Ms. Hisey concluded that the applicant did not suffer a complete inability to carry on a normal life.

55Ms. Hisey was provided with additional information and completed an occupational therapy addendum dated May 18, 2018. She stated that “…after reviewing all of this additional medical documentation, my opinion remains unchanged from my original report dated February 6, 2018 addressing Non-Earner Benefits. It continues to be the opinion of this therapist that Mr. Roumia does not suffer a complete inability to carry on a normal life.”

56The applicant underwent a psychiatry assessment with Dr. Velan Sivasubramanian. In the psychiatry assessment dated May 18, 2018, Dr. Sivasubramanian stated that “please be advised that this dictation must be reviewed with some caution as Mr. Roumia’s testimony was at times inconsistent. At other points, he seemed to contradict information available in the clinical record.” Dr. Sivasubramanian opined that:

From a purely psychiatric perspective, Mr. Roumia has developed a specific phobia (driver and passenger anxiety) with minimal impairment and avoidance as a direct result of his index motor vehicle accident. In addition, I believe that his pre-existing adjustment disorder with anxious and depressed mood has been exacerbated. His prognosis is good. I would anticipate a slow but progressive improvement in his phobic symptoms over time. His adjustment disorder symptoms should improve as his physical state improves. He found that the applicant does not suffer from a complete inability to carry on a normal life. Despite his psychiatric symptoms, he continues to be independent with his self-care. He still banks independently. He drives independently. He appears to enjoy reading certain non-fiction subjects. Many of his described limitations appear to be secondary to his perception of pain rather than as a result of psychiatric symptoms.

57I prefer the reports of Dr. Taylor, Ms. Hisey and Dr. Sivasubramanian because the objective findings of the assessors are consistent. They assessed him for the purposes of determining whether he met the test for the non-earner benefit. They all conducted thorough examinations of the applicant and documented their findings. Their findings were consistent as they both concluded that he did not meet the test for the non-earner benefit from a physical, occupational therapy or psychiatric standpoint. I find that there is limited evidence to refute the findings in these reports that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident.

58The Applicant must prove that he is unable to engage in substantially all of his pre-accident activities. Furthermore, it is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on him to establish that those changes amounted to him being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means the applicant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”⁴

59As noted in Heath, where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities. Although the applicant has reported that he experiences pain, his pain is clearly manageable and does not practically prevent him from independent self-care or engagement in other activities such as driving. The applicant has not provided enough medical evidence to substantiate that he has a complete inability to live a normal life because of this pain.

60Based on the evidence before me, the applicant continues to engage in substantially all of his activities of daily living as he did prior to the accident. Therefore, based on the totality of the evidence before me, I find that the Applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life.

Issue ii: Is the respondent liable to pay a special Award under s. 10 O. Reg 664?

61The applicant seeks a special award under s. 10 of the Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant.

62The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to him. Hence, I find that the applicant is not entitled to an award under s. 10 of the Ontario Regulation 664.

Issue iii: Interest

63Since I did not find any benefit to be payable, no interest is applicable. Therefore, the applicant is not entitled to any interest.

ORDER

64The applicant is not entitled to the non-earner benefits for the period in dispute.

65Since I have found that he is not entitled to these benefits, he is also not entitled to any interest claimed.

66I order that the applicant is not entitled to an award under s. 10 of O. Reg 664.

67The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule, O Reg 34/10
2. 2Ibid.
3. 32009 ONCA 391 at para 50.
4. 4Supra note 3 at 6.