Licence Appeal Tribunal File Number: 22-007553/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:
Lorna Brown
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brett Bell
APPEARANCES:
For the Applicant:
Roger R Foisy, Counsel
For the Respondent:
Suhasha Hewagama, Counsel
HEARD: In Writing
July 15, 2024
OVERVIEW
1Lorna Brown (the “applicant”), was involved in an automobile accident on May 1, 2020, 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 Economical Mutual Insurance Company (“the respondent”), based on its determination that the applicant’s accident-related impairments did not entitle her to Non-Earner Benefits (“NEB”).
3The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSES
4The issues in dispute are:
a) Is the applicant entitled to an NEB in the amount of $185.00 per week, for the period of May 29, 2020 to Apr. 29, 2022?
b) Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
c) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that:
a) The applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident and, as a result, she is not entitled to NEBs for the period of May 29, 2020 to Apr. 29, 2022.
b) The applicant is not entitled to an award.
c) The applicant is not entitled to interest.
ANALYSIS
Applicant Not Entitled to Non-Earner Benefit
6The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
7Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.
8“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.” (16-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT))
9As noted by the respondent, Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”) provides guidance on evaluating eligibility. The Court of Appeal hearing the case held that “…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.”
10Heath outlines several principles for the determination of entitlement to NEBs, which include:
a) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;
b) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;
c) all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;
d) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);
e) “engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,
f) if pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.
11Further, the Tribunal has held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less he or she is able to dedicate to the same activity post-accident to discharge his or her burden of proving that he or she is prevented from engaging in “substantially all” of the pre-accident activities in which he or she ordinarily engaged (16-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT)).
12The documents submitted by the applicant fail to support her position regarding her entitlement to NEBs. For example, the applicant submitted a Disability Certificate (“OCF-3”) dated December 14, 2021, completed by Branko Milen, chiropractor, that indicates that she suffers a complete inability to carry on a normal life. However, I am unable, based on the evidence before me, to compare her pre- and post-accident activities, as required by Heath.
13The applicant has submitted minimal medical evidence or documentation to compare participation in pre-accident activities to participation in post-accident activities. The applicant directs me to self-reporting statements gathered during the February 23, 2022 Examination Under Oath (“EUO”) and the continuation of the EUO on August 22, 2022, but does not direct me to any additional supporting medical evidence necessary to compare the applicant’s pre- and post-accident activities, such as CNRs from qualified medical practitioners.
14With the little medical evidence I have before me, I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to NEBs for the period of May 29, 2020 to Apr. 29, 2022.
Provision of OCF-3 form
15The applicant submits that she was not provided with an OCF-3 form by the respondent after submitting her OCF-1. The respondent submits that s. 32(2) of the Schedule is tied to s. 32(1), which outlines the timelines for a person intending to apply for benefits. Because the applicant did not comply with the timelines listed in s. 32(1), the respondent’s position is that they are not obligated to request an OCF-3 from the applicant under the Schedule.
16Regardless of when the respondent provided an OCF-3, the applicant remains obligated to prove their eligibility for the benefits applied for in their application to the Tribunal. As the applicant has clearly not done that, I find no need to weigh the timing when the applicant received an OCF-3 form, as it has no bearing on my decision.
Compliance with Section 33(1)
17The respondent submits that throughout the process of the applicant applying for NEBs, she was not in compliance with s. 33(1) of the Schedule and therefore the respondent was not required to pay NEBs even if the Tribunal found the applicant was entitled to those benefits. As I have found that the applicant is not entitled to NEBs, an analysis of her compliance with s. 33(1) is not necessary.
Interest
18If applicable, interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the applicant is not entitled to NEBs, she is not entitled to interest.
Award
19I find that the applicant is not entitled to an award as she has not proven on a balance of probabilities that she is entitled to the benefits applied for. As the applicant is not entitled to benefits, no payments were unreasonably withheld or delayed.
ORDER
20The application is dismissed and I find that:
i. The applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident and, as a result, he is not entitled to NEBs for the period of May 29, 2020 to Apr. 29, 2022.
ii. The applicant is not entitled to interest.
iii. The applicant is not entitled to an award.
Released: August 16, 2024
Brett Bell
Adjudicator