Citation: Zhang v. Aviva Insurance Company, 2024 ONLAT 23-001681/AABS

Licence Appeal Tribunal File Number: 23-001681/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:

Tian Kai Zhang

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Daniel McDonald, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Tian Kai Zhang, the applicant, was involved in an automobile accident on September 26, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 25, 2021, to date and ongoing?

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

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant is not entitled to a NEB, interest or an award.

ANALYSIS:

The applicant is not entitled to an NEB

5I find that the applicant is not entitled to an NEB.

6Section 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.”

7The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”), which, generally focuses on a comparison of the applicant’s pre- and post-accident activities. Pursuant to Heath, the following factors are to be considered when analyzing whether an insured is entitled to an NEB:

i. A comparison between the insured’s activities and life circumstances before and after the accident;

ii. Assessing the insured’s activities and life circumstances requires more than a snapshot in time but involves assessing over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

iii. Proving “substantially all” requires looking at all the insured’s pre-accident activities and life circumstances but greater emphasis can be placed on the activities that matter the most to the insured;

iv. “Continuously prevents” means that the impairment is of a nature, extent or degree that is and remains uninterrupted;

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it is not “engaging in;” and

vi. If pain is a primary factor that prevents the insured from engaging in their pre-accident activities, the question is not whether the insured can physically do the acts, but is the insured practically prevented from engaging in those activities?

8For the applicant to prove that he sustained injuries that continuously prevent him from engaging in substantially all of his pre-accident activities, he must present a thorough analysis and comparison of activities that he could do before and after the accident. The applicant must first identify the activities in which he used to engage, along with their frequency and importance. In R.S. and Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) (“R.S.”), which was relied upon by the respondent, the Tribunal held at paragraph 17 that:

It is impossible to properly assess whether an applicant is prevented from engaging in substantially all of the pre-accident activities in which he ordinarily engaged is difficult in this case. I do not have sufficient information about the time commitments of the applicant’s pre-accident activities. I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on these activities prior to the accident.

9The applicant submits that he suffers a complete inability to carry on a normal life as a result of the accident. He submits that he experiences significant impairments in his activities of daily living, including pain and psychological symptoms and his current symptoms significantly interfere with his return to his full level of pre-accident functioning. He submits that despite being able to do some things, though typically with accompanying pain, he cannot genuinely engage in any of his pre-accident activities after the accident. He claims that the respondent has improperly denied him an NEB despite his submission of a Disability Certificate, (“OCF-3”), dated October 28, 2021, treatment plans, a Psychological Screening report dated November 22, 2021 and prepared by Dr. Sharleen McDowall, psychologist, a Psychological Assessment report dated March 24, 2022 and prepared by Dr. Bruce Cook, psychologist, and an Occupational Therapy In-Home Assessment report, dated October 22, 2023 and prepared by Raymond Wong, occupational therapist.

10The applicant relies on the October 28, 2021 OCF-3, prepared by Ahmed Afifi, physiotherapist, at Total Recovery Rehab Centre, which indicates that the applicant suffered a complete inability to carry on a normal life. The OCF-3 notes at part 6, that the applicant has injuries affecting most of his activities of daily living. The expected length of the disability on the OCF-3 is indicated for more than twelve weeks.

11The applicant further relies upon the Psychological Pre-Screening report, prepared by Dr. McDowall, dated November 22, 2021. Dr. McDowall, noted that the accident has caused the applicant to have more arguments with his girlfriend, he now takes Ubers instead of driving, he avoids the accident site, he avoids going out in general and he cancelled most of his social activities due to vehicular fear.

12The applicant also submits that the Psychological Assessment report prepared by Dr. Cook, dated March 24, 2022 supports that he is experiencing significant impairments in his activities of daily living. The report notes that he is unable to play basketball as he used to do prior to the accident, and he is experiencing greater difficulty with his studies due to his inability to concentrate. The applicant stated that he failed four out of seven courses last semester due to his inability to focus. The report also noted that the applicant is also unable to shovel snow, cut the lawn, rake leaves or do any gardening. The applicant stated that he only gets four to five hours of sleep and has a poor appetite.

13In the Occupational Therapy In-Home assessment, dated October 22, 2023, Mr. Wong, noted that the applicant has difficulty managing his personal care and housekeeping tasks and requires assistance. Mr. Wong stated that the applicant now has a limited social life compared to before the accident due to limited mobility and physical pain. Attendant care and housekeeping assistance were recommended by Mr. Wong.

14The respondent submits that the applicant has not met his burden of proof that he suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The respondent submits that the applicant has not presented a thorough analysis and comparison of his pre- and post-accident activities, including evidence establishing time commitments of all activities. Specifically, the respondent submits that there is no evidence of pre-accident activities contemporaneous with the pre-accident period. The respondent further submits that the applicant has not presented evidence that a treating physician opined that he sustained an impairment as a result of the accident that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The respondent relies upon the Insurer Examination (“IE”) reports of Dr. Allan Kopyto, general practitioner, and Dr. Kelly McCutcheon, psychologist, dated April 19, 2023, which confirm that the applicant does not suffer a complete inability to carry on a normal life.

15I find that the applicant has not proven on a balance of probabilities that he suffers from a complete inability to carry on a normal life for the following reasons.

16I find that while the applicant raised the Heath factors in his submissions, he did not make submissions on the particulars of the pre- and post-accident activities, as required by Heath. Without details regarding the activities he valued, or evidence of the frequency and time commitments of his pre-accident activities, I cannot compare his pre- and post-accident ability to engage in activities he ordinarily engaged in or valued.

17The applicant has also not provided any details of the time commitments of his pre-accident activities. While he states that he cannot play basketball or do certain outdoor house maintenance tasks, there are no details of the time spent on these pre-accident activities. Similarly, I agree with the respondent that the applicant’s assertion that he could not attend his classes at Centennial College in- person, is not supported by the Centennial school records provided by the applicant. The applicant failed multiple courses prior to the accident as well as post-accident. In Winter 2022, after the September 26, 2021 accident, his marks were his highest grades with two A’s. Similarly, there are no medical records to support a finding that the applicant could not attend his in-person classes because there are a lack of CNRs submitted by the applicant. Therefore, and similar to the Tribunal’s decision in R.S., I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on his activities prior to the accident.

18I agree with the respondent’s submission that while the applicant relies upon the OCF-3, submitted by Mr. Afifi, an OCF-3 alone is insufficient medical evidence to meet the high bar of entitlement to an NEB. The presence of objective supporting evidence to corroborate an applicant’s self-reports is necessary to prove entitlement to an NEB. Upon review of the medical evidence submitted by the applicant, there are no CNRs from the applicant’s family physician or from Total Recovery Rehab Centre provided, to support his ongoing reports of pain and limitations as a result of the subject accident.

19Similarly, I agree with the respondent’s submission that the applicant’s reliance on several treatment plans as evidence of his accident-related injuries, impairments and reduced functioning, is not compelling evidence. The treatment plans must be accompanied by compelling, contemporaneous and objective medical evidence to support that the applicant is entitled to a NEB.

20In his Psychological Report, dated March 24, 2022, Dr. Cook opines that the applicant experiences significant impairments in his activities of daily living, including pain and psychological symptoms. He states that the applicant’s current symptoms significantly interfere with his return to his full level of pre-accident functioning. Dr. Cook does not specify which reported symptoms or specific activities of daily living that the applicant cannot perform due to his psychological condition.

21I agree with the respondent that the applicant’s reliance on the Occupational Therapy In-Home Assessment report, dated October 22, 2023, by Mr. Wong, should be given little weight. The report was prepared after the 104-week period post-accident during which a complete inability to carry on a normal life must be established. The report of Mr. Wong is not contemporaneous with the alleged period of disability. In addition, while Mr. Wong notes that the applicant’s pain has disrupted aspects of his life including self-care, eating, sleeping, family and home responsibilities, occupation, recreation and social activity, he does not provide any specifics details about these limitations.

22I prefer the evidence of the respondent set out in Dr. Kopyto’s June 27, 2022 IE report. The applicant reported to Dr. Kopyto, that in terms of housekeeping and home maintenance, he is able to complete all of the chores that he normally did before the accident. The applicant noted that for the first one to two months after the accident he could not do sweeping and mopping. In terms of self-care, he is independent and denied any impairment at any time as a result of the accident. He reported that he has not resumed playing basketball since the accident. He stated that his day consists of “just staying at home” due to fatigue and fear of driving long distances by himself. The applicant reported that he missed much of his in-person classes following the accident and eventually failed five out of six courses he was taking because the classes were “hands-on” and required prolonged standing. In terms of treatment, he stated that he attended physical rehabilitation once every week or two but following his second accident on May 26, 2022, treatment was discontinued due to a conflict of interest. He claimed that he attended for psychological treatment once weekly. Dr. Kopyto opined that from a musculoskeletal perspective, the applicant does not suffer a complete inability to carry on a normal life as a result of the accident.

23I also find the April 6, 2023 IE Psychological Assessment by Dr. McCutcheon, persuasive. I note the inconsistent reporting by the applicant with respect to the physical treatment he received post-accident. To Dr. McCutcheon, the applicant reported that he attended therapy twice week and to Dr. Kopyto, the applicant reported that he attended once every week or two. In terms of psychological treatment, the applicant reported to Dr. McCutcheon, that he underwent a psychological assessment but did not receive any counselling. In contrast, the applicant reported to Dr. Kopyto that he attended for psychological treatment once weekly. There have been no CNRs submitted to support what therapy the applicant received post-accident. The applicant reported to Dr. McCutcheon that since his accident he has no decline in his ability to focus, attend and concentrate. He continues to socialize with his friends, but he can no longer play basketball. He stated that prior to the accident he lived with his parents but now rents a floor of a house. He can still complete chores, but he calls Uber Eats for food and hires someone to clean and to do his laundry. He indicated that he is independent with self-care activities and attends school. Dr. McCutcheon opined that while the applicant is currently dealing with some anxiety and depression, this impairment is not of a sufficient incapacitating degree, and therefore, from a psychological perspective, he does not suffer a complete inability to carry on a normal life.

24I find the applicant has not provided sufficient evidence to allow me to assess any potential changes to his pre- and post-accident activity levels. Therefore, the applicant is not entitled to an NEB.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no overdue payment of benefits is owing to the applicant, no interest is owed.

Award

26The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant is not entitled to an award under s. 10 of Reg. 664 because there are no benefits owing.

ORDER

27For the reasons outlined above, I find that the applicant is not entitled to an NEB, interest or an award.