Licence Appeal Tribunal File Number: 21-004411/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:
Bogdan Kukhar
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Maria Mikhailitchenko, Counsel
For the Respondent:
Nisaa Khan, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Bogdan Kukhar (the “applicant”) was involved in a motor vehicle accident on December 17, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Canada (the “respondent”) denied a claim for non-earner benefits (“NEB”). The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to NEB in the amount of $185.00 per week from June 17, 2019 to December 17, 2020?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
3I find that the applicant is not entitled to NEB of $185.00 per week from June 17, 2019 to December 17, 2020. As there are no benefits owing, it follows that the applicant is also not entitled to interest. The application is dismissed.
ANALYSIS
Non-Earner Benefits (“NEB”)
4Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an 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.”
5The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that his life circumstances have changed significantly enough to continuously prevent him from substantially engaging in the activities that he did before the accident.
6At the time of the accident, the applicant was a full-time university student who was working on-call hours as a security guard. He submits that the accident exacerbated a previously diagnosed psychological condition that substantially diminished his ability to focus, lowered his self-esteem, and caused other emotional and cognitive symptoms that negatively affected his ability to perform the activities of daily life. Specifically, the applicant claims the “severe shock” of the accident caused substantial limitations to his socializing and communication skills; reading, listening, watching, and processing information; studying; working; and exercising and going out.
7The applicant primarily relies on an OCF-3 completed by Dr. Kathryn Monaghan, chiropractor, dated December 21, 2018; his OHIP summary; clinical notes and records (“CNRs”) of Dr. Oksana Matsenko, psychiatrist; and psychological assessment reports and treatment updates completed in 2019-2020 by Dr. Svetlana Gabidulina, psychologist.
8The respondent takes the position that the applicant failed to provide sufficient evidence demonstrating that he suffered a complete inability to carry on a normal life and is therefore not entitled to NEB. Aviva submits that the applicant did not adduce a comparison of his activities before and after the accident in accordance with Heath, so he has not met this test, and that the applicant actually returned to substantially all of the activities that he engaged in prior to the accident.
Is the applicant entitled to NEB?
9I find that the applicant is not entitled to NEB of $185.00 per week for the time period from June 17, 2019 to December 17, 2020 as he has not demonstrated that he suffered from a complete inability to carry on a normal life.
10The applicant’s evidence is not persuasive. I agree with the respondent in that the applicant has not presented sufficient evidence to meet the NEB test as established in Heath, that he returned to school and work shortly after the accident, and that there was minimal indication of ongoing difficulties that significantly impacted his ability to carry out the activities of his normal life.
11I also find it difficult to determine what the applicant is disputing here, which presents a significant challenge when assessing his NEB entitlement. The NEB claim is extremely vague with regard to specifics. The applicant does not cite a NEB time period in submissions at all. Instead of referencing the June 17, 2019 to December 17, 2020 timeframe listed in the Case Conference Report and Summary (“CCRO”) dated February 2, 2022 that set this matter down for a hearing, he notes that a period of time has yet to be determined. No firm dates are proposed, although at the end of submissions he settles on the NEB period lasting “for approximately a year or year and a half” post-accident, or until “at least” May 2020, and concludes that he is entitled to “at least 78 weeks” of NEB to “further physical and psychological treatment.”
12This uncertainly is further reflected in the applicant’s medical evidence. The applicant’s OHIP summary and the CNRs of Dr. Matsenko substantiate that the applicant was diagnosed with a significant psychiatric illness in 2015 and was subsequently treated for this condition from then until the time of the accident in 2018. But little evidence has been submitted to demonstrate that this illness and its symptoms were exacerbated by the accident to the point where the applicant suffered a complete inability to carry on the activities of a normal life.
13Most of the applicant’s argument relies on a psychology report and two psychological progress reports, all completed by Dr. Gabidulina and dated May 15, 2019, January 15, 2020, and March 1, 2020, respectively. However, I find these reports do not support his claim to NEB. Dr. Gabidulina noted that some psychological difficulties had been triggered by the accident. She recorded the applicant’s self-reported complaints about working fewer hours, having some difficulties performing household tasks in the home he shared with his parents due to post-accident physical pain and “emotional conditions,” and that this pain and “emotional distress” was decreasing his motivation to go out socially. As a result, Dr. Gabidulina diagnosed the applicant with a moderate depressive episode and severe automobile anxiety as a result of the accident.
14But Dr. Gabidulina did not write that the applicant suffered a complete inability to carry on a normal life. The psychologist recommended psychological therapy sessions in each of her reports to address the applicant’s symptoms before they could develop into “more significant clinical problems.” Although Dr. Gabidulina did not refer specifically to the NEB test, her conclusions lead me to believe that this psychological treatment was recommended to address the applicant’s issues before they rose to the level where he suffered a complete inability to carry on the activities of a normal life—not that he was already at that stage. This inference is also supported by the applicant’s own comments to Dr. Gabidulina, as he reported continuing working at his job and continuing with his university studies in the 2019-2020 academic year, albeit with some emotional and cognitive difficulties. The applicant also told Dr. Gabidulina that he had met a girlfriend online and was looking forward to a trip to Ukraine to meet her.
15None of this supports the contention that the applicant suffered a complete inability to carry on a normal life. Although the applicant has established that he suffered from a pre-existing psychological condition, and that the symptoms of this illness were somewhat exacerbated by the accident, he has not met the stringent requirement of the Schedule for entitlement to NEB. The applicant has also not provided a reasonably fulsome account of his activities both pre- and post-accident in accordance with Heath—although this is somewhat inconsequential in the end, as his comments to Dr. Gabidulina clearly indicate that he continued to go to work and go to school following the accident.
16For the above reasons, I find that the applicant his not met his burden and established that he suffered a complete inability to carry on a normal life. He is not entitled to NEB, nor interest.
ORDER
17The applicant is not entitled to NEB of $185.00 per week from June 17, 2019 to December 17, 2020. As there are no benefits owing, it follows that the applicant is also not entitled to interest. The application is dismissed.
Released: June 22, 2023
Brett Todd
Vice-Chair