Citation: Delena v. Aviva Insurance Company, 2023 ONLAT 19-007957/AABS

Licence Appeal Tribunal File Number: 19-007957/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:

Hermenegildo Delena

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Sandra Train, Counsel

For the Respondent: Jonathan Charland, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 25, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES

3I have been asked to decide the following issues in dispute:

1. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from April 25, 2017, to date and ongoing?
2. Is the applicant entitled to interest on any overdue payment of benefits?
3. Is the applicant entitled to costs pursuant to Rule 19 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019) (“Rules”)?

RESULT

4After reviewing both parties’ submissions and all of the evidence I find the applicant is not entitled to a NEB, interest, or costs.

BACKGROUND

5On April 25, 2017, the applicant was the front seat passenger of a vehicle driven by his wife, which was t-boned by a vehicle making a sudden left-hand turn at a traffic light. The applicant’s accident-related impairments included a sternal fracture, strained rotator cuff of the right shoulder, and strain and sprain impairments to his knee and back.

ANALYSIS

Is the applicant entitled to a NEB in the amount of $185.00 per week from April 25, 2017 to the 104-week mark?

6The applicant is not entitled to a NEB from April 25, 2017 to the 104-week mark.

7Section 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. Economical², which focuses on a comparison of the insured’s pre-and post-accident activities.

8In support of his claim for a NEB, the applicant relies on the Occupational Therapy (“OT”) In-Home Functional Assessment report of Tharshi Sivapalan dated July 7, 2017, a clinical note and record of Dr. Beattie, consultation reports of Dr. Veillette, thoracic surgeon and some diagnostic imaging of his sternum and right shoulder. The applicant submits that his accident-related impairments resulted in a complete inability to carry on a normal life.

9The respondent argues that the applicant is not entitled to the NEB. It maintains that the only disability certificate (“OCF-3”) submitted by the applicant does not support entitlement to the benefit. Further, the applicant has not submitted any evidence supporting that he has been continuously prevented from engaging in substantially all of the activities he normally engaged prior to the accident. The applicant has not proven on a balance of probabilities that he meets the test for entitlement. I agree with the respondent for the following reasons.

10The applicant submitted an OCF-3 dated June 29, 2017, and authored by Danny Hijazi, physiotherapist. While Mr. Jijazi noted that the applicant required housekeeping assistance as a result of his injuries he checked off “no” in response to the question of whether the applicant suffers a complete inability to carry on a normal life as a result of the accident. At that time, the applicant did not meet the test for entitlement to the NEB. No evidence is before me to support that the applicant submitted another OCF-3 to support that he was entitled to the benefit.

11In an explanation of benefits dated July 12, 2017, the respondent denied the NEB because the OCF-3 did not support entitlement. The applicant argues that the respondent was obligated to request additional medical records, conduct an insurer’s examination, or request an updated OCF-3. I agree with the respondent that if the OCF-3 did not support entitlement, it was under no obligation to assess the applicant’s entitlement to NEBs any further.

12The respondent submits that section 36(2) of the Schedule provides that an insured claiming NEBs shall submit a completed disability certificate. Section 36(3) of the Schedule provides that an insured who fails to submit a completed OCF-3 is not entitled to a specified benefit for any period before a completed OCF-3 is submitted. The respondent argues that the completed disability certificate is the foundation upon which the claim for NEBs rests. It relies on this Tribunal’s decisions in SM v. Aviva³ and Munu Munu v. Aviva⁴ in support of its position that an OCF-3 supporting entitlement to the benefit is required. These decisions both dealt with the preliminary issue of whether an insured is entitled to claim a NEB if they failed to submit a completed OCF-3. In paragraph 22 of SM v. Aviva, Vice Chair Farlam discusses the statutory intent of s. 36(3) of the Schedule and what it means to submit a “completed” OCF-3, she states:

The language of the requirement in s. 36(2) that an applicant for a non-earner benefit "shall submit a completed disability certificate" is clear when viewed in the context in which the language is used. The purpose of the disability certificate is that it is the foundation of the applicant's claim, in this case, to a non-earner benefit. The fact that the applicant's disability certificate in this particular case confirms the applicant does not have a complete inability to carry on a normal life as a result of the accident is notice to the respondent that there is no medical opinion at that time to support a non-earner benefit claim…The statutory requirement to submit a "completed" disability certificate can only be reasonably interpreted to mean completed in a manner that certifies that the applicant meets the criterion for non-earner benefits.

13I agree with the Vice-Chair’s analysis of the intent of s.36(3) of the Schedule that an OCF-3 supporting entitlement is necessary to trigger a claim for entitlement to a NEB. Further, I find the facts of this case identical to SM v. Aviva, as to date, the applicant has not submitted an OCF-3 supporting that he has a complete inability to carry on a normal life. In addition, I agree that the applicant has failed to submit any evidence from either a treating practitioner or expert to support that he has a complete inability to carry on a normal life as a result of his accident-related impairments.

14The applicant submits that the OCF-3 submitted was completed by a physiotherapist and was not a complete medical assessment. I do find this argument relevant. Further, the applicant attempted to reverse the onus onto the respondent to suggest that it should have gathered the medical evidence to support the applicant’s claim. This argument is not persuasive. Nor do I find the case law relied on by the applicant helpful to his position. To refute the respondent’s argument regarding s.36(3) the applicant relies on the Tribunal decision in SM v. Aviva.⁵ The applicant suggests that this decision supports his position that OCF-3s are really not that important in analyzing whether an insured meets the test for entitlement to the NEB. I find the applicant mischaracterized the adjudicator’s comments in this decision. The only point the adjudicator made is that an OCF-3 supporting entitlement to a benefit on its own is insufficient evidence to support a claim. For all of the above reasons, I find the applicant’s claim for NEBs fails because he did not submit a completed OCF-3 supporting entitlement. However, if I am wrong in my analysis of s.36(3) of the Schedule, the applicant still does not meet the test for the following reasons.

15The applicant’ submissions fell far short of meeting his onus in proving his entitlement to a NEB. The bulk of his submissions were spent summarizing the medical evidence and impairments. The applicant’s submissions barely discussed his pre-accident activities of daily living and how his impairments prevented him from carrying out substantially all of his activities post-accident. This is the level of detail that is required to meet the test as outlined in Heath.

16Other than the findings of the OT report of Ms. Sivapalan, which I will address later, only one paragraph of his submissions address how the applicant’s life has changed post-accident. It states: the applicant has never returned to his outdoor activities. The OT report lists some of the applicant’s outdoor maintenance chores but does not explain which accident-related impairment prevented him from carrying out his outdoor activities. The submissions state that he has not returned to driving but there is no explanation for why. Further, the submissions state he can only do limited housekeeping duties since the accident, but no details are provided for exactly what he did pre-accident. Then his submissions go on to state that church was a very important part of his life both spiritually and socially and he has not been able to attend Church post-accident. Once again, the applicant’s submissions failed to address what impairment prevented him from going to Church. It is also important to note that submissions are not evidence. Therefore, I provide the summary provided in the submissions little weight.

17With the exception of the OT report none of the other medical records relied upon by the applicant support that he was continuously prevented from carrying out all of his pre-accident activities as a result of the accident. Vague references to functional limitations in medical records are not helpful to support entitlement to the NEB test.

18The OT In-Home Functional Assessment of Tharshi Sivapalan dated July 7, 2017, provided the following details about the applicant’s pre-accident life:

• He was retired;
• He was independent with driving
• He would assist his wife with going grocery shopping
• He was responsible for taking out the garbage, doing yardwork, snow removal, gardening, and home maintenance repairs.
• He went to the gym once a week and went mall walking
• He attended Church once a week and volunteered once a month at a social community group called Opus Dei.

19Ms. Sivapalan’s report then goes on to state that following the accident, the applicant is unable to do any of the above activities due to pain and physical tolerance. What I find lacking in this report is an explanation for why. Further, the physical testing outlined in this report was mostly within functional limits. Other than mentioning that the applicant has difficulty reaching to put on clothes because of his right shoulder impairment I find the remainder of the report vague as far as connecting the impairment in function to the accident-related injury.

20The findings of Ms. Sivapalan’s report were also inconsistent with the OT insurer examination assessment conducted by Gord Hirano dated September 1, 2017 (less than 3 months later). Mr. Hirano observed the applicant walk, sit, stand and climb stairs. He noted the applicant’s lumbar movement was slow and guarded and noted the applicant could not do heavy chores. The report states that the applicant completed his personal care activities independently but was slow. Further, the applicant was independent with bathing, grooming, nail care and feeding.

21I agree with the respondent that the applicant has not proven that he has continuously been prevented from carrying out substantially all of his pre-accident activities because of his accident-related impairments. The x-rays or CNRs of Dr. Veillette do not support that the applicant has any significant ongoing disability as a result of the accident. The applicant highlights medical records that refer to an ongoing right shoulder impairment. Further, there are vague references to functional impairments. However, these functional limitations are not discussed in any detail.

22As highlighted above, the bulk of the applicant’s submissions summarized the medical records and impairments versus focusing on how these impairments resulted in a complete inability to carry on a normal life. As set out in Heath the first step in determining whether an individual qualifies for a NEB is to compare their pre and post-accident activities of daily living. What I find completely lacking was a fulsome picture of what the applicant’s activities of daily living were before the accident and how his impairments prevented him from carrying out these activities. Although I acknowledge that the applicant sustained a fractured sternum and rotator cuff tear in his right shoulder, the applicant failed to prove that these impairments resulted in a complete inability to carry on a normal life.

23For all of the above-noted reasons, the applicant has not met his onus in proving that he qualified for the benefit as no OCF-3 was submitted supporting entitlement or that he meets the disability test.

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

24The applicant is not entitled to payment of interest.

25Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have determined that the applicant is not entitled to NEBs he is not entitled to interest.

Is the applicant entitled to costs pursuant to Rule 19?

26The applicant is not entitled to costs.

27Under Rule 19 the Tribunal may award costs if it determines that a party acted “unreasonably, frivolously, vexatiously or in bad faith” during the proceedings. The threshold for costs is a high one.

28The applicant’s submissions lacked any specifics for how the respondent’s conduct during the proceedings met the above test. Nor did the applicant submit any evidence in support of same. The applicant has not established he is entitled to costs. Costs are not payable.

ORDER

29For all of the above-noted reasons, I order as follows:

1. The applicant is not entitled to the NEB, interest or costs. This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para.50.
3. 3SM v. Aviva Insurance Company of Canada, 2020 CanLII 14426 (ON LAT)
4. 4Munu Munu v. Aviva Insurance Company, 2021 CanLII 50788 (ON LAT), 2021 CanLII50788 (ON LAT)
5. 5S.M. v. Aviva Insurance Canada, 2018 CanLII 81898 (ONLAT)