20-007977/AABS

Licence Appeal Tribunal File Number: 20-007977/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:

Jia Chen Wen

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Hooman Zadegan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jia Chen Wen, the applicant, was involved in an automobile accident on December 30, 2017, 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 the respondent, Aviva Insurance Company of Canada, 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 January 27, 2018 to December 30, 2019?

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

RESULT

3After reviewing the parties’ submissions and all of the evidence I find:

(i) The applicant is entitled to payment of a NEB in the amount of $185.00 per week from June 11, 2018, to September 14, 2018, plus interest pursuant to s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining time periods claimed.

ANALYSIS

4Section 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 before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical (2009 ONCA 391) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

5Section 12(1)(2)(i) and (ii) of the Schedule sets out that an insured must meet one of the following two criteria in order to be eligible for a NEB. The insured must:

i. either be enrolled on a full-time basis in elementary, secondary or postsecondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training.

6The applicant argues that he is entitled to NEBs because he sustained physical and psychological impairments as a result of the accident which have resulted in a complete inability to carry on a normal life. He relies on a pre-screening psychological report of Dr. McDowell, clinical notes and records (“CNRs”) of EZ Physio, and the Activities of Normal Life form (“OCF-12”). He also contends that his reports about his functional limitations to insurer examination (“IE”) assessors support that he has significant limitations. The applicant also submits that the respondent is liable to pay the NEB because it failed to comply with its procedural obligations pursuant to s. 36 of the Schedule. Consequently, it must pay the benefit pursuant to s. 36(4)(b) of the Schedule.

7The respondent submits that the applicant has failed to meet his onus in proving that he meets the legislative requirements for eligibility to the benefit as he was working as a waiter in a nightclub prior to the accident. Further, he has not proven that he was enrolled full-time as a student. It maintains that the applicant failed to comply with its request for employment, education, and medical records. As a result, the Tribunal should draw an adverse inference from the applicant’s failure to submit these records in support of his claim. It further asserts that the applicant’s presentation and reports to IE assessors has been inconsistent, and its psychological IE assessor encountered significant validity issues with psychometric tests which support significant exaggeration. It also submits that his reports about his post-accident function do not support that he meets the complete inability test.

8I will first address the applicant’s submissions regarding the respondent’s failure to comply with its procedural obligations and will then address whether the applicant meets the test for entitlement to a NEB.

The respondent did not comply with its procedural obligations pursuant to s. 36(4) of the Schedule.

9The applicant is entitled to payment of a NEB in the amount of $185.00 from June 11, 2018, to September 14, 2018 because the respondent failed to comply with its procedural obligations under s. 36(4) of the Schedule.

10Section 36(4) provides that within 10 business days of receiving an application and a completed OCF-3, an insurer must:

(i.) Pay the specified benefit;

(ii.) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

(iii.) Send a request to the applicant under s. 33(1) or s. 33(2).

11Section 36(5) further states that if an insurer sends a request to the applicant under s. 33(1) or (2), which is a request that the applicant provide to it certain information set out in the Schedule or to submit to an examination under oath, the insurer shall, within 10 business days after the applicant complies with the request, pay the benefit or give the applicant a notice described in s. 36(4)(b). If the insurer fails to comply with either s. 36(4) or s. 36(5), then s. 36(6) obligates the insurer to pay the benefit for the period starting on the day the insurer received the application and the completed OCF-3 until it provides notice in accordance with s. 36(4)(b).

12In this matter, the applicant submits that the respondent failed to provide him with notice that complied with the Schedule following submission of an OCF-3 on June 11, 2018. The respondent did not respond to the OCF-3 until September 14, 2018, which was 95 days after the OCF-3 was submitted. Therefore, the applicant asserts he is entitled to NEBs for this time period because of the respondent’s non-compliance with s. 36(6) of the Schedule. The applicant relies on this Tribunal’s decision in Mahhamoud v Aviva General Insurance, 2022 CanLII 11144 (ON LAT) in support of his position. In this decision, the adjudicator determined that the insurer was obligated to pay benefits until it provided notice to the insured responding to the application for a benefit.

13The respondent did not address this argument at all or provide any evidence to support that it complied with its procedural obligations under s. 36(6) of the Schedule. Therefore, I agree with the applicant that the respondent must pay the NEB from June 11, 2018, to September 14, 2018, plus interest. I will now address whether the applicant meets the test for entitlement to NEBs for the remaining time period.

The applicant is not entitled to payment of a NEB from January 27, 2018, to June 11, 2018, or from September 15, 2018, to March 19, 2019.

14The applicant has not met his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life for the following reasons.

15First, I find the applicant’s submissions regarding his pre- and post-accident function in school and employment activities to be unsupported by any objective evidence. For example, he reported to assessors that he worked as a waiter at a night club since 2017 and that he stopped working as a result of his accident-related impairments. No employment records were submitted to confirm this. In addition, he submits that he came to Canada as a foreign student and before the accident was attending a private high school full-time. Further, since 2019 he has been enrolled with the Toronto Film School and attends classes up to 24 hours per week. The applicant relies on a pre-screen psychological screening report of Dr. McDowell attached to a treatment plan which notes that his grades dropped from 80% to 50% post-accident.

16I agree with the respondent that no pre- or post-accident school records were submitted to support that he was either enrolled in school full-time prior to the accident or that there was a decline in his academic performance post-accident as a result of any accident-related impairments. In light of the validity issues encountered by Dr. Nikkhou, IE psychological assessor (which I will discuss further below) I give the applicant’s self-reports to Dr. McDowell little weight. I also agree with the respondent that the applicant has failed to prove that he was enrolled in school full-time pre-accident, and he has not proven that he meets the legislative requirements for eligibility pursuant to s. 12(1)(2)(i) and (ii) of the Schedule. It is the applicant’s onus to prove that he meets the criteria. He has failed to do so.

17Second, I find his submissions and evidence relied upon about his pre- and post-accident activities to be vague, lacking in detail and inconsistent. He relied on an OCF-12 Form which note partial restrictions in most activities of daily living. No explanation was provided about to what degree he is restricted in carrying out any activities post-accident or why. This OCF-12 on its own is insufficient to support that he meets the complete inability test. Overall, his submissions did not persuasively or cogently set out his pre- and post-accident activities and link them to any accident-related impairment. He submits that prior to the accident he was in good health and was fully independent in self care and housekeeping and home maintenance tasks. He attended the gym six times a week and played ball with friends two to three times a week. Following the accident, he no longer carries out any of these activities because of physical pain and poor mood. However, I find the applicant has failed to submit any persuasive medical evidence in support of his position that any impairments prevented him from carrying out these activities.

18As highlighted by the respondent, the applicant did not seek medical attention for any accident-related impairment until seven months post-accident when he returned to China in April 2018. This doctor did not recommend any treatment and the records were not submitted in support of this hearing. The applicant also relies on the CNRs of EZ Physio which for the most part were not helpful because they were not legible. A re-assessment report of Maryam Azerang-Esfandiari, physiotherapist notes that the applicant complained about of pain to various parts of his body and there were some restrictions with his range of motion. However, this report does not discuss in any detail his pre- and post-accident activities of daily living or address why the applicant cannot carry out these activities because of his impairments.

19Third, a good portion of the applicant’s submissions focus on his self-reports about his functional limitations to the multi-disciplinary IE assessors, whose opinions do not support his position. For example, Dr. Harrington, the orthopaedic assessor found inconsistencies in the applicant’s physical examination. The doctor opined that the applicant sustained soft tissue injuries and that there was no evidence of ongoing musculoskeletal impairment which would result in any functional limitations.

20Furthermore, the psychological IE assessor Dr. Nikkhou diagnosed the applicant with a mild psychological impairment. However, the doctor noted inconsistencies between the applicant’s reported psychological symptoms with his reports about his function. For example, the applicant provided Dr. Nikkhou with an example of a typical day where he wakes up between 6 and 7 a.m., goes to school from 8 to 4 p.m.; comes home and does homework for 2 hours; has dinner; has a shower and goes to bed at 11:00 p.m. This was inconsistent with the applicant’s reported psychological symptoms as well as the validity issues encountered with psychometric tests which supported the doctor’s suspicion of symptom exaggeration. The respondent submits that the applicant’s self-reports to Dr. Nikkhou about a typical day does not align with someone who has a complete inability to carry on a normal life as a result of any accident-related impairment. I agree. Finally, the IE OT report of Mr. Finlay did not find any evidence of functional impairment which would interfere with the applicant’s ability to carry out any of the activities he carried out pre-accident.

21For all of the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the NEB in the amount of $185.00 from June 11, 2018 to September 14, 2018.

ORDER

23For all of the above-noted reasons:

(i) The applicant is entitled to payment of a NEB in the amount of $185.00 per week from June 11, 2018, to September 14, 2018, plus interest pursuant to s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining time periods claimed.