Grant Flint v. Certas Direct Insurance Company, 2023 ONLAT 20-010941/AABS

Licence Appeal Tribunal File Number: 20-010941/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:

Grant Flint

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Shohreh Rakhhan, Counsel

For the Respondent: Michael Chadwick, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on November 30, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by Aviva Insurance Company, (the “respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

RESOLVED ISSUE

2The respondent has agreed to fund a treatment plan in the amount of $3,008.82 with interest. This decision will address the remaining issues in dispute.

ISSUES

3The following issues are to be decided:

a. Is the applicant entitled to receive a non-earner benefit (“NEB”) of $185.00 from November 19, 2019, to November 30, 2020?

b. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4I find that:

a. The applicant is not entitled to receive a NEB of $185.00 from November 19, 2019, to November 30, 2020; and

b. The applicant is not entitled to an award under Regulation 664.

ANALYSIS

Non-Earner Benefit

5The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

6Section 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.

7“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted to by the Tribunal to mean “more than most, a majority, but not all activities.”²

8Both parties refer to the decision in Heath v. Economical Mutual Insurance Company³ (“Heath”), wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁴

9Heath also outlines several principles for the determination of entitlement to an NEB:

a. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

b. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

c. 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;

d. 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 means that the disability or incapacity must be uninterrupted);

e. “Engaging in” should be interpreted from a qualitative perspective, such that 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; and,

f. 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.⁵

10The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.⁶

11The applicant submits that he is entitled to an NEB due to a myriad of injuries and impairments caused by the accident, from November 19, 2019, to November 30, 2020, at a rate of $185 per week.

12The applicant relies on the neurology consultation report of Dr. Vincenzo Basile, neurologist, dated April 8, 2019. Dr. Basile found that the applicant’s overall clinical history, physical examination, as well as electrodiagnostic (“EMG”) studies, pointed towards a right-sided chronic C5-6 cervical radiculopathy superimposed on musculoskeletal-type symptomatology. Dr. Basile recommended over-the-counter anti-inflammatories, progressing if necessary to Meloxicam, Celebrex or Vimovo.

13The applicant also relies on the report of Dr. Fahimeh Aghamohseni, psychologist, dated March 11, 2020. The report provides that the applicant’s psychological symptoms led to “serious and major impediments in his daily functioning” ultimately preventing the applicant from carrying on a normal life as a result of the accident. The applicant was diagnosed with major depressive disorder, somatic symptom disorder and specific phobia (vehicular).

14It is the applicant’s position that based on a holistic review of the medical records, his continuous pain, physical limitations and ongoing psychological impairments have caused him to suffer a complete inability to carry on a normal life.

15It is the respondent’s position that the applicant has not discharged his onus of proof establishing entitlement to the NEB. The respondent cites S.S. v. Wawanesa Mutual Insurance Company⁷ to demonstrate the high threshold to be met, inclusive of a comprehensive account of his pre- and post-accident activity level.

16First, the respondent submits that the comments in Dr. Aghamohseni’s March 11, 2020 report do not provide the level of detail as to the applicant’s pre and post accident activity level that is required to meet his onus of proof. The report references that household tasks have become “difficult” for the applicant to complete, as these household tasks now take longer.⁸ However, there is no reference to how long the household tasks take, or how long it took pre-accident. The same comments were made with respect to the applicant’s personal care tasks,⁹ physical exercise¹⁰ and social patterns and relationships.¹¹ The report mentions these activities, but there is no analysis or comparison. Based on the report, the respondent submitted it is evident that the applicant can engage in these tasks post-accident.

17These findings were further supported by the Insurer Exam (“IE”), dated July 7, 2020, by Ashley Allen, occupational therapist. The applicant reported to Ms. Allen that he resumed his pre-accident self-care and housekeeping duties with modifications as needed.¹² However, Ms. Allen did not make a clear comparison between pre-accident and post-accident functional state of the applicant.

18Third, the respondent relies on the IE reports of Dr. Maneet Bhatia, psychologist¹³ and Dr. Farooq Ismail, physiatrist.¹⁴ Both medical assessors found that the applicant did not meet the test for NEB.

19Fourth, the respondent references the IE report of Dr. Robert Yufe, neurologist, dated July 7, 2020. Dr. Yufe opines that the applicant had a normal clinical neurological examination, with no physiological anatomical or neurological impairment. Dr. Yufe found that there is no neurological reason why the applicant cannot engage in all pre-accident daily living activities, including social and recreational. Dr. Yufe also provided that he could not confirm the C5-6 cervical diagnosis of Dr. Basile. Dr. Yufe referenced the neurological report of Dr. Hamza Jalal, neurologist, dated October 21, 2019, which also did not confirm Dr. Basile’s diagnosis and reported that the applicant had a normal clinical and EMG examination.

20After considering the submissions and evidence of the parties, I find that the applicant has not met his evidentiary burden of providing compelling evidence in support of his claim that he suffers a complete inability to carry on a normal life as a result of his accident. There must be contemporaneous evidence in support of the complete inability test. I am persuaded by the totality of medical evidence presented by Dr. Yufe, Dr. Jalal, Dr. Bhatia, and Dr. Ismail that the applicant does not meet the test for NEB as there is no evident reason or explanation as to why he cannot engage in all pre-accident activities.

21When I consider the totality of the evidence tendered, I am simply not persuaded that the applicant has established he suffered an impairment that continuously prevented him from engaging in substantially all of the activities he was engaged in before the accident.

22Most notably I was unable to discern any comprehensive comparison between the applicant’s pre-accident and post-accident functional status. The applicant’s reliance on Dr. Aghamohseni’s report does not satisfy the before and after comparison required by the Heath and previous Tribunal decisions.

23Put simply, the evidence before me is insufficient to establish an NEB claim. Instead, I was more persuaded by the respondent’s position and evidence. As a result, the applicant’s claim for NEB is denied for the disputed period.

Special Award

24Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664.

ORDER

25I find that:

a. The applicant is not entitled to receive a non-earner benefit of $185.00 from November 19, 2019 to November 30, 2020; and

b. The applicant is not entitled to an award under Regulation 664.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 216-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
3. 32009 ONCA 391.
4. 4Ibid. para. 50.
5. 5Ibid.
6. 616-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT).
7. 7S.S. v. Wawanesa Mutual Insurance Company, 2019 CanLII 101448 (ON LAT).
8. 8Vacuuming, mopping, sweeping, laundry, grocery shipping, putting away groceries, cooking and washing dishes.
9. 9Toe-nail care, showering, washing hair and dressing.
10. 10The report references “physical exercise” finding that the applicant is not able to engage in leisure and physical activities that he enjoyed. It also finds that his present level of physical fitness is “dramatically lower” than before the accident however there is no further details provided on how often the applicant was physically active prior to the accident, compared to following the accident.
11. 11The report references “social patterns and relationship” finding that the applicant is withdrawal from family and friends outside the home. No further detail is provided other then a statement about not talking to people as much. No clarity on how often the applicant saw family and friends prior to the accident, compared to following the accident.
12. 12Occupational Therapy in Home Assessment Report, July 7, 2020.
13. 13Psychology assessment report, dated July 7, 2020
14. 14Physical medicine and rehabilitation specialist assessment report dated July 7, 2020.