Citation: Khaira v. Aviva Insurance Canada, 2023 ONLAT 21-009380/AABS
Licence Appeal Tribunal File Number: 21-009380/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:
Sharanjit Khaira
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Nav Aujla, Counsel
For the Respondent:
Laura Bassett, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sharanjit Khaira, the applicant, was involved in an automobile accident on November 26, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from December 26, 2019, to the two-year mark?
ii. Is the applicant entitled to the amount of $1,824.00 for physiotherapy services, proposed by Pace Health and Wellness in a treatment plan/OCF-18 (“plan”) submitted on January 18, 2021?
iii. Is the applicant entitled to the amount of $1,914.26 for a physiotherapy services, proposed by Pace Health and Wellness submitted on September 28, 2021?
iv. Is the applicant entitled to the amount of $2,200.00 for a psychological assessment, proposed by Harwood Wellness Centre in a plan submitted on June 16, 2021?
v. Is the applicant entitled to the amount of $2,883.87 for a prescription and osteopathic treatment, proposed in a plan submitted June 4, 2021?
vi. Is the applicant entitled to the amount of $4,224.50 for osteopathy and rehab services, proposed in a plan submitted on December 18, 2021?
vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to any of the benefits in dispute, interest or an award. This application is dismissed.
PROCEDURAL ISSUE
4The applicant’s submissions addressed issues in dispute that were not included in the Tribunal’s case conference report and order dated December 7, 2022 (“Order”). In particular, they addressed two OCF-18s: one in the amount of $259.70 for physiotherapy and another for a chronic pain assessment in the amount of $2,200.00. The respondent opposed the applicant’s submissions regarding these issues on the basis that they were never properly added to the dispute and were not listed in the Tribunal’s Order. Therefore, it would be procedurally unfair to the respondent as it was not provided with prior notice of the dispute. I agree with the respondent and will not be addressing any of the issues in dispute that were not included in the Order. I find it would be procedurally unfair to the respondent to address issues in dispute which are not identified in the Order in advance of the hearing.
ANALYSIS
The applicant is not entitled to a NEB in the amount of $185.00 per week from December 26, 2019, to the two-year mark
5Section 12(1) 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 before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.
6Section 12(3)(c) of the Schedule supports that an insurer is not required to pay a NEB for more than 104 weeks after the accident. Section 36(3) of the Schedule states that an insured person who fails to submit a completed disability certificate (OCF-3) is not entitled to a specified benefit for any period before the completed OCF-3 is submitted.
7The applicant argues that she sustained various impairments as a result of the accident which have resulted in a complete inability to carry on a normal life. She relies on the OCF-3 prepared by Dr. Sekhon, chiropractor, dated February 21, 2023, the chronic pain assessment of Dr. Getahun, orthopaedic surgeon, dated May 26, 2021, and psychological report of Dr. Steiner dated September 9, 2021, and catastrophic assessment reports from 2022.
8The respondent argues that the applicant is not entitled to NEBs because she did not submit the OCF-3 supporting entitlement within 104 weeks of the accident, as required for payment by the Schedule. It asserts that even the applicant acknowledged in her submissions that she did not submit an OCF-3 supporting entitlement to a NEB until February 8, 2023, which is 2 years, 2 months and 13 days post-accident, which is past the 104-week mark required by the Schedule. Therefore, she did not apply or qualify for the benefit within the time required by s.12(1). It relies on the Tribunal’s decision in C.N. v Aviva General Insurance, 2020 CanLII 80293 (ON LAT) in support of its position that a failure to submit an OCF-3 within 104 weeks supporting entitlement to the NEB precludes and an insured from being paid a NEB. Finally, it also submits that the applicant has not proven that she meets the stringent test for entitlement to the benefit. I agree with the respondent for the following reasons.
9First, I find the wording in s. 12(1)1 of the Schedule clear that in order to qualify for payment of a NEB an insured must suffer a complete inability to carry on a normal life within the first 104-week period post-accident. Moreover, s. 12(3)(c) supports that an insurer is not required to pay a NEB for more than 104 weeks after the accident. It is undisputed that the applicant did not submit an OCF-3 supporting that she qualified for the NEB within the 104-week period. I also find the language in s. 36(3) clear that the respondent is not required to pay the applicant a NEB for any period prior to the OCF-3 being submitted. As a result, I find that the applicant is not entitled to payment of the benefit because she did not qualify or apply for the benefit within the prescribed time under the Schedule.
10Second, I find the applicant did not meet her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life as per the test in Heath. The applicant’s submissions provided a summary of pain complaints and diagnoses from medical reports but did not highlight how this evidence supports that she meets the test for NEBs. What I find lacking in this case was any information about what the applicant’s pre-accident activities were or what accident-related impairment prevented her from carrying out those activities. In addition, she did not identify the activities that she values most which would attract more weight under the Heath test. Without this information, I am unable to determine whether she meets the NEB test. It is not the role of the trier of fact to weed through hundreds of pages of medical records and reports to make the case on the applicant’s behalf.
11Finally, despite being given up to 15 pages for her written submissions, the applicant’s submissions were 6 pages in length. Her submissions were wholly insufficient in addressing the test outlined in Heath. I find the applicant should have addressed how the medical evidence supports that she meets the NEB test. In addition, despite being given the opportunity to file reply submissions addressing the procedural issues raised by the respondent the applicant chose not to. As a result, I find the applicant has not met her onus in proving on a balance of probabilities that she applied for the benefit within the time required or that she suffered a complete inability to carry on a normal life within 104 weeks of the accident. Therefore, I find she is not entitled to payment of a NEB for the time period claimed.
The applicant is not entitled to any of the OCF-18s in dispute
12To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
13The applicant has fallen short of meeting her onus in proving that any of the OCF-18s in dispute are reasonable and necessary. As highlighted above, the applicant’s submissions provided a summary of insurance forms submitted to the respondent and diagnoses listed in her assessor’s medical reports. The submissions did not address the goals of any of the treatment plans, how the goals will be met or the cost of same. Further, her submissions did not link any accident-related impairment to the treatment being sought and she did not submit any of the OCF-18s for my consideration or explain which practitioners recommended the treatment and why.
14For the above-reasons, the applicant has not proven on a balance of probabilities that any of the disputed OCF-18s are reasonable and necessary as a result of any accident-related impairment.
The applicant is not entitled to interest
15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue interest is not payable.
The applicant is not entitled to an award
16The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In light of my decision, I find an award is not warranted in this case.
ORDER
17For the above-noted reasons, the applicant has not established entitlement to any of the benefits in dispute, interest or an award. This application is dismissed.
Released: November 27, 2023
__________________________
Rebecca Hines
Adjudicator