Licence Appeal Tribunal File Number: 19-002480/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:
H. P.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
H. P., Applicant
Taylan Caliskan, Counsel
For the Respondent:
Tara Bull, AB Specialist
Kevin Griffiths, Counsel
Court Reporter:
Maureen Biscak
HEARD: by Videoconference:
January 18 and 19, 2023
OVERVIEW
1The applicant was involved in an automobile accident on April 11, 2017. As a result of the accident, she sustained injuries to her back, neck, and shoulders, as well as psychological impairments. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)(“Schedule”).
2The respondent denied the applicant’s claim for Non-Earner Benefits (“NEBs”) on the basis that she does not suffer from a complete inability to carry on a normal life. The applicant disagreed, and she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3The issues in dispute are:
a. Is the applicant entitled to NEBs in the amount of $185.00 per week from May 11, 2017 to April 11, 2019?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the respondent liable to pay an award under s.10 of O.Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant is not entitled to NEBs for the period in dispute.
5As there are no benefits payable, the applicant is not entitled to any interest in accordance with s.51 of the Schedule.
6The applicant is not entitled to an award under s.10 of O. Reg. 664.
ANALYSIS
7In order to receive NEBs, the applicant must prove that she suffers a complete inability to carry on a normal life as a result of the accident. A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. ‘Substantially all’ is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean ‘more than most, a majority, but not all activities.’
8Section 36(3) of the Schedule also sets out that an applicant who fails to submit a completed disability certificate (“OCF-3”) is not entitled to a specified benefit, including NEBs, for any period before the OCF-3 is submitted.
9The respondent did not receive a completed OCF-3 from the applicant until August 20, 2018. The initial OCF-3 that the applicant submitted in July 2017 was incomplete, because the question related to entitlement to NEBs was left blank. The applicant has made no argument that the respondent failed to comply with s.36(4) or s.36(5) of the Schedule. So, I am left with assessing the applicant’s entitlement to NEBs for only the period between August 20, 2018 (when the completed disability certificate was received) and April 11, 2019.
10In Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, the Court of Appeal outlined several principles for the determination of entitlement to a NEB:
i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;
ii. 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;
iii. 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;
iv. 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 applicant must prove disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted);
v. ‘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,
vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the