Citation: Wong v. Allstate Insurance Company of Canada, 2024 ONLAT 23-000030/AABS

Licence Appeal Tribunal File Number: 23-000030/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:

Yi Wong

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Yu Denise Jiang, Paralegal

For the Respondent:

Meredith Harper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Yi Wong, the applicant, was involved in an automobile accident on January 7, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3This matter will be heard back-to-back with a related file 23-000031/AABS. I will consider this present matter first as set out in the Case Conference Report and Order of Adjudicator Jan Dymond, dated September 12, 2023.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 5, 2021, to present 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

5The applicant is not entitled to an NEB, interest, or an award.

ANALYSIS

The applicant is not entitled to an NEB

6I find that the applicant is not entitled to an NEB.

7Section 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.”

8The 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?

9For the applicant to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before and after the accident. The applicant must first identify the activities in which she used to engage, along with their frequency and importance.

10The applicant submits that she suffers a complete inability to carry on a normal life as a result of the accident. She submits that despite being able to do some things, though typically with accompanying pain, she cannot genuinely engage in any of her pre-accident activities, and she does very little in a day. She claims that the respondent has improperly denied her an NEB despite her submission of a Disability Certificate, (“OCF-3”), dated January 14, 2021, a Psychological Assessment Report dated July 26, 2022 and prepared by Dr. Mehrdad Pojhan, submission of an Activities of Daily Living (“ADL”) form and numerous medical records.

11The applicant relies on the January 14, 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 her ADL’s. The expected length of the disability on the OCF-3 is indicated for more than 12 weeks.

12The applicant further relies upon the Psychological Report of Dr. Pojhan, dated July 26, 2022, which diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood. Dr. Pojhan concluded that the applicant’s current level of functioning prevents her from returning to her premorbid way of life. The applicant highlights that Dr. Pojhan noted that she suffers from significant anxiety, concentration problems, pain, sleep disturbances and social isolation as a direct result of the accident.

13The applicant also submitted copies of the CNRs of Dr. Melvyn M.Y. Chu, family physician, the CNRs of Dr. Victoria Chan, sleep specialist, and the CNRs of Dr. Shuo Xiang, psychiatrist.

14The respondent submits that the applicant has not met her burden of proof that she suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The respondent relies upon the Insurer Examination (“IE”) reports of Dr. Alborz Oshidari, physiatrist, dated July 19, 2021 and Dr. Fabio Salerno, psychologist, dated May 30, 2022, 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 she 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 her submissions, she did not make submissions on the particulars of the pre- and post-accident activities, as required by Heath. Without details regarding the activities she valued, or evidence of the frequency and time commitments of her pre-accident activities, I cannot compare her pre- and post-accident ability to engage in activities she ordinarily engaged in or valued.

17The applicant has also not provided any evidence identifying the actual pre-accident activities in which she used to engage or details of the time commitments of the pre-accident activities. Therefore, I cannot determine what are “substantially all” of the applicant’s pre-accident activities without information about how much time was spent on her activities prior to the accident.

18Upon review of the Psychological Report of Dr. Pojhan, psychologist, dated July 26, 2022, I find that there are several inconsistencies in this report as follows:

i. The applicant reported that she visited her family physician a week after the accident. However, the CNRs of Dr. Chu, family physician, note that he first saw her post-accident on March 3, 2022, over a year after the accident.

ii. The applicant further stated that she was self-employed as a cosmetic consultant and had to reduce her work hours in half following the accident (10 hours per week). Both the OCF-1 and the OCF-3 submitted by the applicant note that she was not working at the time of the accident.

iii. The report further notes that that the applicant had no pre-accident mental health problems. The CNRs of Dr. Xiang, psychiatrist, indicate that she suffered from obsessive compulsive disorder prior to the accident and was under Dr. Xiang’s care since a referral on June 30, 2020.

iv. With respect to her pre-accident activities, Dr. Pojhan notes that prior to the accident, the applicant was interested in reading, cooking, shopping and other activities. Dr. Pojhan notes that she is not cooking or shopping like before, and she does things only when necessary. In contrast, the applicant reports that she cooks every day, but she is very tired. The applicant noted that she is not an outgoing person even before the accident and currently prefers to stay home. The applicant also reported that she has no problem with personal care tasks, and she denied any significant limitations with her household chores post-accident. I further note that Dr. Pojhan did not provide any opinion as to whether the applicant suffers a complete inability to carry on a normal life.

19I prefer the evidence of the respondent set out in the IE reports of Dr. Oshidari, physiatrist, and Dr. Salerno, psychologist, which provides a thorough analysis and assessment of the applicant’s injuries and directly references the complete inability test.

20I find that despite stating in her submissions that she is submitted an ADL form, this document has not been provided by the applicant in her submissions.

21I find the applicant has not provided sufficient evidence to allow me to assess any potential changes to her pre- and post-accident activity levels. Therefore, the applicant is not entitled to an NEB.

Interest

22Interest 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

23The 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

24For the reasons outlined above, I find that the applicant is not entitled to an NEB, interest, or an award.