Cheryl Obermuller v. Commonwell Mutual Insurance, 2023 CanLII 58461

Licence Appeal Tribunal File Number: 20-002854/AABS

20-002854/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:

Cheryl Obermuller

Applicant

And

Commonwell Mutual Insurance

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Cheryl Obermuller, Applicant

For the Respondent: Linda Matthews, Counsel Cecil Jaipaul, Representative

Court Reporter: Rachel Thompson

HEARD by Videoconference: April 24, 2023

OVERVIEW

1Cheryl Obermuller, the applicant, was involved in an automobile accident on March 18, 2018, 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, Commonwell, 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 under the Schedule in the amount of $550.00 per week from March 18, 2018 to date and ongoing?

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit.

ii. As there are no overdue payments of benefits, no interest is payable.

MOTION FOR DISMISSAL OF THE APPLICANT’S CLAIM

4The respondent brought a motion dismissing the applicant’s claim for non-earner benefits pursuant to section 55(1)2 of the Schedule. This section states that claimants shall not apply to the Tribunal if they have not complied with a notice of examination under section 44 of the Schedule. The respondent also sought a declaration that any entitlement which the applicant may have to a non-earner benefit has been suspended since June 8, 2018 due to her failure to comply with sections 33(1) and 33(2) of the Schedule.

5In response, the applicant stated that she was aware of the hearing today based on the notice of videoconference hearing which she received in January 2023, but she could not respond to the respondent’s motion for dismissal based on section 55(1)2 because she submitted that she was not served with motion materials in accordance with the Tribunal’s Common Rules of Practice and Procedure. The respondent submitted that motion materials had been served on the applicant on three occasions: by ordinary mail, by email and by process server.

6As the parties were all present for the hearing of the matter, I reserved on the issues raised by the respondent’s motion and we proceeded with the hearing of the application as scheduled.

ANALYSIS

7The applicant is claiming a non-earner benefit under the Schedule. Section 12(1) provides that an insurer shall pay a non-earner benefit 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.”

8The burden of proof is on the applicant to show that she meets this requirement on the balance of probabilities. I find that she has not met her burden.

9The applicant did not submit any medical or other documentary evidence in support of her claim. She stated that she was relying exclusively on her oral testimony.

10While the applicant stated that her previous lawyer told her that she had a permanent brain injury, she also testified that her basis for this information was what her previous lawyer had told her. The applicant did not produce any other evidence in relation to her ex-lawyer’s statement to her, either by way of her testimony, other witness evidence, or documentation indicating post-accident brain-related investigations or medical assessments.

11According to the applicant’s testimony at the hearing, the accident was a single vehicle accident in an underground parking garage, with no accident report filed, and with no emergency services being called.

12The applicant testified that she has attended for physiotherapy for issues on her left side, from her neck, shoulder blade and arm, a pinched nerve and injuries to her neck and both knees. She testified that once per year, around March or so, her symptoms would flare up. She testified that her symptoms would be affected by changes in the weather. The applicant did not provide other evidence linking this reported symptomatology to the accident.

13At the hearing, the applicant was reminded that to qualify for a non-earner benefit the onus was on her to show that she suffered a complete inability to carry on a normal life as a result of the accident, but she did not do so. As referenced above, she spoke of pain-related symptoms and an annual flare-up of symptoms, but she did not provide any evidence of her activities having substantially changed on an ongoing basis. She testified that she post-accident she continued with activity as a paralegal at a law office and that she did not need any transportation assistance from the insurer.

14In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the Ontario Court of Appeal held that “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 a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase ‘continuously prevents’ means that a claimant must prove ‘disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.’” The applicant has not produced evidence showing that the accident has caused a condition of this nature.

15I find that the applicant has not demonstrated entitlement to a non-earner benefit. As there are no overdue payment of benefits, no interest applies pursuant to section 51 of the Schedule.

16As the applicant has not met her onus in establishing an entitlement to a non-earner benefit, her application is dismissed. It is unnecessary to address the issues raised by the motion of the respondent.

ORDER

17The applicant is not entitled to a non-earner benefit and no interest is payable. The application is dismissed.