Citation: Guo v. Allstate Insurance Company of Canada, 2024 ONLAT 23-001365/AABS

Licence Appeal Tribunal File Number: 23-001365/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:

Min Guo

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Vanessa Liang, Counsel

For the Respondent: Yalda Aziz, Counsel

HEARD: By way of written submissions

OVERVIEW

1Min Guo, the applicant, was involved in an automobile accident on September 24, 2022, 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, Allstate 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”) of $185.00 per week from October 22, 2022, to date?

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

3Several other issues were listed as being in dispute in the Case Conference Report and Order of October 10, 2023. However, the applicant advised in her submissions that she has withdrawn her claim for those issues at this hearing.

RESULT

4The applicant is not entitled to a NEB or interest. Accordingly, the application is dismissed.

ANALYSIS

Non-Earner Benefits

5Section 12(1) of the Schedule provides that an insurer shall pay an 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

6The parties disagree as to whether the applicant meets the test for NEBs, and whether her impairments were caused by the September 2022 accident. The respondent submits that the applicant’s impairments stem from pre-existing depression and a prior accident that took place on June 1, 2022. The applicant submits that both accidents caused her to suffer a complete inability to carry on a normal life, but that the September accident impaired her even more.

7The applicable test in determining causation is the “but for” test: whether the applicant would have had the impairments but for the subject accident. The burden is on the applicant to prove, on a balance of probabilities, that the subject accident was a “necessary cause” of her impairments (Sabadash v. State Farm et al., 2019 ONSC 1121).

8In order to determine whether the applicant meets the NEB test as a result of the September accident, I must apply the Heath test in light of any new impairments sustained by the applicant. In other words, I must look at what activities the applicant ordinarily engaged in prior to the September accident, and whether she sustained an impairment as a result of that accident that continuously prevents her from engaging in substantially all of those activities.

9The applicant relies on a clinical note from Dr. Sam Law, her treating psychiatrist, from a visit on July 5, 2023. However, I find that Dr. Law’s note does not assist her in proving that her impairments stemmed from the September accident as opposed to being longstanding or caused by the June accident. Dr. Law noted that approximately 10-15 years prior, the applicant began suffering from depression. She became more ostracized, socially withdrawn, and reclusive. In 2018, she was admitted to a hospital due to severe major depressive disorder, and she was treated with antidepressants with some efficacy. After the June accident, her depression became notably worse. Dr. Law does not state that the September accident caused a further notable worsening of her symptoms. Instead, he states: “the MVA were twice, both in 2022, which caused a notable drop in terms of her mood”.

10Further, the applicant relies on an OCF-3 dated September 27, 2022, prepared by Dr. Laura Liu, chiropractor, which stated that she was unable to carry on a normal life. However, the OCF-3 also stated that the June accident affected her ability to perform her activities. There are no further details to explain what activities were affected by each accident, so I do not find this document to be persuasive.

11The applicant relies on a number of s. 25 reports which indicate that her pre-accident activities have been impacted by the September accident. Dr. Igor Wilderman, chronic pain physician, opined that she suffers a complete inability to carry on a normal life. Elsa Poon, occupational therapist, opined that she sustained an impairment that continuously prevents her from engaging in substantially all of her pre-accident activities. Ms. Farzaneh Pariman, psychological associate, indicated that the applicant’s activities of daily living have been greatly impacted by the accident, although she did not provide an opinion regarding whether the applicant meets the NEB test.

12In contrast, the respondent relies on opinions from its s. 44 assessors, Dr. Ian Smith, psychologist, and Dr. Ida Cavaliere, physiatrist, that the applicant does not meet the test for NEBs as a result of the September accident.

13Both s. 44 assessors attempted to determine whether the applicant’s difficulties stem either from the accidents in June or September 2022. However, the s. 25 reports were largely devoid of this information, and in some cases included information that appears to be inaccurate. For those reasons, which I will detail further below, I prefer their opinions of the s. 44 assessors over the s. 25 assessors.

14Ms. Poon did not review any of the applicant’s pre-accident medical records. She stated that the applicant had a history of low mood that was not formally diagnosed, however this appears to be incorrect considering the evidence from Dr. Law. Further, Ms. Poon noted that the applicant increased the dosage of her antidepressant after the accident, when the records of her family physician, Dr. Kwan, indicate that the dosage was the same before and after the September accident. In fact, the only time Dr. Kwan recommended an increase in the dosage was on July 5, 2022, prior to the September accident, although it does not appear this was done.

15Ms. Poon proceeded to note the applicant’s impairments without addressing whether they stemmed from the June or September accidents. She noticed that the applicant had a pile of goods in her home that were purchased prior to the September accident. However, she did not explore whether they were purchased prior to the June accident, or even if prior to the June accident the applicant similarly kept items that she was selling in her home. Ms. Poon noted that before the September accident, the applicant was independent in dishwashing, bathroom cleaning, kitchen cleaning, grocery shopping, doing laundry for three people, and changing the bedsheets for three beds. Afterwards, the applicant deferred most of these activities to her daughter. Again, Ms. Poon did not explore whether any of these restrictions were already present because of the June accident.

16Ms. Poon indicated that prior to the accident, the applicant was able to function well, enjoyed dressing up and meeting with people, and enjoyed going out shopping. She reported that the applicant now prefers to isolate herself in her bedroom and spends most of her time in bed. Ms. Poon did not explore the extent to which the June accident affected these activities.

17I am accordingly not persuaded by Ms. Poon’s opinion that the applicant sustained an impairment that continuously prevents her from engaging in substantially all of her pre-accident activities, as she did not engage with the question of what the applicant’s activities were subsequent to the June accident.

18Similarly, Ms. Pariman did not review any pre-accident medical records. There appear to be some errors contained within Ms. Pariman’s report; for example, Ms. Pariman indicated that the applicant was diagnosed with depression two to three years prior and was never hospitalized due to mental health, which does not align with Dr. Law’s clinical note. Further, she indicated that the applicant did not have suicidal thoughts in the past or present, but Dr. Kwan’s note from July 5, 2022, indicates that the applicant had occasional suicidal ideation. While she indicated that the applicant had been referred to a psychiatrist, Ms. Pariman did not mention that the applicant was referred to a psychiatrist after the June accident and before the September accident. Importantly, Ms. Pariman did not delve into whether any of the limitations described by the applicant also existed after the June accident or in the months leading up to the September accident.

19Dr. Wilderman listed a number of activities the applicant has been unable to complete after the September accident but also did not explain the difference in her functioning compared to the months leading up to it. He also opined that she had a substantial and continuous impairment of her ability to perform her recreational activities, but the applicant advised him that she could not recall her pre-accident recreational activities. I am not sure how he arrived at this conclusion.

20On the other hand, Dr. Cavaliere compared the applicant’s activities before the June accident, after the June accident, and after the September accident. The applicant’s ability to complete her personal care and housekeeping tasks were noted to be the same after the June accident and the September accident. Further, the same reduction in hours of sleep and lack of socialization were reported after both accidents. The only difference with respect to the applicant’s functioning was reportedly that the applicant was no longer driving after the September accident.

21Dr. Smith indicated that there was clear evidence of significant worsening of depressive symptoms following the June accident, and then another worsening following the September accident. She only resumed driving occasionally after the June accident and since the September accident she rarely drives, relying on friends to drive her. The applicant points out that Dr. Smith noted a significant decline in household activities including cleaning and cooking following the September accident, a diminished interest in social contact with her small circle, and near total driving avoidance. However, Dr. Smith also noted that she is still independent in her self-care, goes on regular outings in the community two to three times per week for shopping and appointments, and has attempted to work several times in cleaning or food service. Although he considered her symptoms to be significant, his opinion was that she did not appear to suffer from a complete inability to carry out all of her pre-accident activities. The applicant does not address this opinion in her submissions.

22In her submissions, the applicant provided a list of activities that she engaged in before the September accident. Examples of these activities included dressing up and wearing pointy shoes, singing karaoke with friends, and running. However, I am persuaded by the evidence before me that she was not engaging in these activities prior to the accident. According to Dr. Smith, Dr. Cavaliere, and Dr. Law, the applicant had already become socially withdrawn before the September accident. Further, there is no evidence before me that the applicant had resumed running after the June accident.

23Ultimately, I find that the applicant has not provided compelling evidence of what her ordinary activities were in the months after the June accident and leading up to the September accident, or the extent to which the September accident caused her impairments to worsen. I accordingly find that the applicant has not met her burden of proving, on a balance of probabilities, that she suffers a complete inability to carry on a normal life as a result of the September accident.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is payable, interest is not applicable.

ORDER

25The applicant is not entitled to a NEB or interest. Accordingly, the application is dismissed.