Citation: Wong v. Allstate Insurance Company of Canada, 2024 ONLAT 23-000031/AABS

Licence Appeal Tribunal File Number: 23-000031/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 December 13, 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 23-000030/AABS. I will consider this present matter second, as set out in the Case Conference Report 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 of $185.00 per week from January 11, 2022 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

1I find that the applicant is not entitled to an NEB.

2Section 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.”

3The 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?

4For 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.

5The 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 August 19, 2022, a Psychological Assessment Report, prepared by Mandy Fang, social worker, dated December 19, 2022, submission of an Activities of Daily Living (“ADL”) form and numerous medical records.

6The applicant relies on the August 19, 2022 OCF-3, prepared by Jing Heng Guan, chiropractor, at UHeal 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 is unable to perform her pre-accident activities of daily living without exacerbating her symptomatology. The expected length of disability on the OCF-3 is indicated for more than 12 weeks.

7The applicant further relies upon the Psychological Report, prepared by Mandy Fang, social worker, supervised by Dr. Sharleen McDowall, psychologist, dated December 19, 2022, which diagnosed the applicant with major depressive disorder with anxious distress, as well as specific phobia (travel). The applicant reported to Ms. Fang that since the accident, she has been unable to physically function in her daily and professional life, and her participation in her social life has also markedly decreased. The applicant indicated that her daily functioning has been adversely affected due to the physical pain and emotional distress that she has experienced. She stated that her injuries affect her daily activities, including her ability to work, complete household chores, and attend social functions.

8The applicant submitted copies of the CNR of Dr. Melvyn M.Y. Chu, family physician dated November 24, 2022 and the CNR of Dr. Shuo Xiang, psychiatrist, dated January 20, 2023.

9The 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”) report of Dr. Debra Mandel, psychologist, dated May 17, 2023 which confirmed that from a purely psychological perspective, the applicant does not suffer a complete inability to carry on a normal life.

10I 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.

11I 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.

12The applicant has 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.

13Upon review of the Psychological Report of Mandy Fang, social worker, dated December 19, 2022, I find that there are several inconsistencies in this report as follows:

i. The report notes that the applicant denied having any pre-existing significant mental health issues. There is mention of the applicant’s previous involvement in an accident in January, 2021, which the applicant described as being “more serious” than the subject accident. However, her psychological complaints following the January, 2021 accident were not discussed by Ms. Fang. In addition, Ms. Fang does not discuss the applicant’s pre-accident obsessive compulsive disorder that she suffered since June 30, 2020, as set out in the CNRs of Dr. Xiang, psychiatrist.

ii. The applicant further advised Ms. Fang, that at the time of the accident, that she was an entrepreneur who sold beauty products online. 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. With respect to her pre-accident activities, Ms. Fang notes that prior to the accident, the applicant was active and healthy. She worked as an entrepreneur selling beauty products online, she maintained her household, and she enjoyed socializing with family and friends. She claims that since the accident, the applicant has been unable to engage in these activities. There is no mention of the injuries or limitations suffered by the applicant in her previous accident on January 7, 2021, which she claimed was a more serious accident. I further note that Ms. Fang did not provide any opinion as to whether the applicant suffers a complete inability to carry on a normal life.

14I prefer the evidence of the respondent set out in the IE report of Dr. Mandel, psychologist, which provides a thorough analysis and assessment of the applicant’s injuries and directly references the complete inability test.

15I 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.

16I 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

17Interest 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

18The 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

19For the reasons outlined above, I find that the applicant is not entitled to an NEB, interest, or an award.