Citation: Esquivel v. TD Insurance Meloche Monnex, 2024 ONLAT 22-000065/AABS

Licence Appeal Tribunal File Number: 22-000065/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:

Daniel Esquivel

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Katherine Dempsey, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Daniel Esquivel (the “applicant”) was involved in an automobile accident on October 23, 2019, 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 TD Insurance Meloche Monnex (the “respondent”) 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 November 19, 2019, to October 23, 2021?

ii. Is the applicant entitled to $2,880.00 for physiotherapy services, proposed by Physiomed in a treatment plan/OCF-18 (“OCF-18”) submitted on February 5, 2021, and denied March 1, 2021?

iii. Is the applicant entitled to the assessments proposed by Downsview Healthcare Inc., as follows:

i. $2,200.00 for a chronic pain assessment, in an OCF-18 submitted on October 15, 2021, and denied October 27, 2021; and

ii. $2,200.00 for a neurological assessment, in an OCF-18 submitted on October 13, 2021, and denied October 25, 2021.

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

RESULT

3The applicant is not entitled to any of the benefits in dispute, nor interest. This application is dismissed.

ANALYSIS

The applicant is not entitled to NEB

4I find that the applicant has not satisfied his onus to prove that he suffers from a complete inability to carry on a normal life.

5Section 12(1) of the Schedule provides that an insurer shall pay a 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 Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.

6The applicant submits that he sustained significant injuries, including psychological and chronic pain diagnoses as a result of the accident. He relies on a Disability Certificate (“OCF-3”) prepared by Dr. Nayida Bowen, physiotherapist, dated November 5, 2019, the clinical notes, and records of Dr. Shaffiq Ramji, family doctor, and Dr. Albana Dreshaj, psychiatrist, and a s. 25 psychological assessment report completed by Ms. Helen Ilios, registered psychotherapist, and Dr. Jacqueline Brunshaw, psychologist, dated January 20, 2022.

7The respondent submits that the evidence shows that the applicant continues to perform his housekeeping, go to work, and spend time with his friends/family, and he is independent with his personal care tasks. Moreover, the respondent further argues that the applicant has not produced evidence to show that engaging in his pre-accident activities resulted in significant pain or pain at all.

8I find the applicant did not meet his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life as per the test in Heath.

9The applicant’s submissions provided a summary of pain/psychological complaints and diagnoses from medical reports but did not highlight how this evidence supports that he meets the test for NEBs. What I find lacking in this case was any information about what the applicant’s pre-accident activities were or what accident-related impairment prevented him from carrying out those activities. In addition, he did not identify the activities that he values most which would attract more weight under the Heath test. Without this information, I am unable to determine whether he meets the NEB test. It is not the role of the trier of fact to delve through hundreds of pages of medical records and reports to make the case on the applicant’s behalf.

10Next, despite being given up to 12 pages for his written submissions, the applicant’s submissions were 6 pages in length. His submissions were wholly insufficient in addressing the test outlined in Heath. I find the applicant should have addressed how the medical evidence supports that he meets the NEB test.

11An applicant cannot submit evidence in this fashion in the hopes that an adjudicator will then connect the dots and build his case. An applicant must make his own argument and reference specific evidence when it comes to meeting the NEB test as established in Heath, primarily by providing details of his activities pre- and post-accident and how his accident-related impairments impacted on these activities.

12As a result of the above, I find the applicant has not met his onus in proving on a balance of probabilities that he suffered a complete inability to carry on a normal life within 104 weeks of the accident. Therefore, I find he is not entitled to payment of a NEB for the time period claimed.

The applicant is not entitled to any of the OCF-18s in dispute

13The applicant has not proven on a balance of probabilities that any of the disputed OCF-18s are reasonable and necessary as a result of any accident-related impairment.

14To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15The applicant has fallen very short of meeting his onus in proving that any of the OCF-18s in dispute are reasonable and necessary. As highlighted above, the applicant’s submissions provided a summary of diagnoses listed in his assessor’s medical reports, clinical notes, and records of various treating practitioners and in an OCF-3. Critically, the submissions did not address the goals of any of the treatment plans, how the goals will be met or the cost of same. Moreover, the applicant’s submissions did not link the diagnoses to the treatment/assessment being sought or explain which practitioners recommended the treatment/assessments and why.

16Problematically, the applicant did not submit any of the OCF-18s in his initial submissions, and despite being given another opportunity by this Tribunal to tender a copy of the OCF-18s in dispute, he only submitted a copy of the OCF-18 for issue ii. In any event, without specific submissions speaking to the reasonableness and necessity of the OCF-18s, I find the applicant has not met his burden of proof and the OCF-18s are not payable.

The applicant is not entitled to interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue, interest is not payable.

ORDER

18For the above-noted reasons, the applicant has not established entitlement to any of the benefits in dispute, and interest. This application is dismissed.