Licence Appeal Tribunal File Number: 23-002255/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:
Tevon M. Gomes
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Tevon M. Gomes Adam Wilson, Counsel
For the Respondent:
Jeremy MacDonald, Adjuster
Odette Ansell, Counsel
Danielle Malone, Counsel
Court Reporter:
Caitlin Westerhout
HEARD by Videoconference:
May 21, 2024
OVERVIEW
1Tevon M. Gomes (the “applicant”) was involved in an automobile accident on February 26, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the start of the videoconference hearing, the parties advised that the applicant’s accident-related injuries were now being treated outside of the Minor Injury Guideline and that the respondent had agreed to pay the treatment plans identified in the Case Conference Report and Order (“CCRO”) released on October 10, 2023, with interest. The applicant also advised that he was no longer pursuing a claim for an award under s. 10 of Regulation 664. The balance of the issues listed in the CCRO remain in dispute.
ISSUES
3The issues in dispute are:
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 26, 2021 to February 26, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that the applicant is not entitled to NEB nor interest.
5The application is dismissed.
PROCEDURAL ISSUES
Length of the hearing
6Pursuant to the CCRO, the Tribunal scheduled a 3-day videoconference hearing for this matter. However, given the remaining issues in dispute and the fact that the applicant was the only witness being called to give oral testimony at the hearing, the parties agreed that reducing the number of hearing days was warranted.
7The applicant requested that the matter be heard over two days. He stated that he required, at the minimum, three hours to complete his examination in chief, and that it would be difficult for him to complete his examination and make closing submissions in one day. As such, he requested that closing submissions be heard on the second day of the hearing.
8In response, the respondent stated that it would be preferable to complete the hearing in one day and noted that two hours to complete his examination of the applicant was more than enough time.
9For the reasons that follow, I found that it was appropriate to reduce the length of the hearing to a 1-day videoconference hearing. As indicated at paragraph 15 of the CCRO, orders made at the case conference are subject to the hearing adjudicator’s discretion. Although the CCRO contemplated a maximum of 5 witnesses, I was advised by the parties that only one witness, the applicant, would be called to give oral testimony. Further, several issues in dispute identified at the case conference were withdrawn at the start of the hearing, and there were no preliminary issues or motions scheduled to be heard at the hearing [see also: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 2 and 25.0.1].
ANALYSIS
Background
10The applicant is 38 years old. He is divorced, and he has four children.
11Prior to the subject accident, the applicant was involved in two prior accidents. In the first accident, which occurred on September 20, 2017, the applicant was rear ended at a red light, and in the second accident, which occurred on November 18, 2017, the applicant’s vehicle was side swiped on the passenger side (the “2017 accidents”).
12As a result of the 2017 accidents, the applicant suffered from headaches, neck pain, back pain, chest pain, bilateral arm pain, bilateral leg pain, post-traumatic stress disorder, anxiety, and depression. He testified that in the 5-month period prior to the subject accident, his 2017 injuries were improving.
13The applicant previously worked as a material handler, forklift operator, and general labourer. However, he was not working at the time of the September 2017 accident, and he advised that he had last worked in August 2017. The applicant states that he attempted to return to work in 2018, but he was unsuccessful and stopped working in 2019.
14At the time of the subject accident, on February 26, 2021, the applicant was travelling near Simcoe St. in Oshawa, Ontario. He was waiting at a yield sign for oncoming traffic to pass when he was rear ended.
15The applicant denies that he sustained any new injuries as a result of the subject accident. Rather, he testified that the injuries he sustained in the 2017 accidents were exacerbated by the subject accident.
Non-earner benefit
16Section 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.
17Section 3(7)(a) of the Schedule 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 generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.
18Section 12(3) of the Schedule provides that an insurer is not required to pay a NEB, (a) for the first four weeks after the onset of the complete inability to carry on a normal life, (b) before the insured person is 18 years old, (c) for more than 104 weeks after the accident, or (d) if the insured person is eligible to receive and has elected under s. 35 to either receive an income replacement benefit or a caregiver benefit.
19Section 36 of the Schedule details the process for claiming a NEB. Sections 36(2) and 36(3) provide that the entitlement period for NEB commences once a completed Application of Accident Benefits (OCF-1) and a completed Disability Certificate (OCF-3) has been submitted. An applicant who fails to submit a completed OCF-3 is not entitled to NEB for any period before the completed OCF-3 is submitted.
20Further, s. 34 of the Schedule provides that a person’s failure to comply with the time limit does not disentitle the person to a benefit if the person has a reasonable explanation. The onus is on the applicant to establish a reasonable explanation for the delay.
21At the time of the accident, the applicant was 35 years old, he was unemployed, and he had not worked since 2019 due to the physical and psychological injuries he sustained in the 2017 accidents.
22The applicant submits that as a result of the accident, he suffers from a complete inability to carry on a normal life as he is unable to engage in his pre-accident activities to the same extent as he did before the accident. Specifically, he testified that he is unable to spend time with his children that live in Toronto, Ontario like he used to or to speak with his children that live in Mobile, Alabama (United States of America) like he used to. Further, he engages less frequently in the following pre-accident activities: going for walks; grocery shopping; cooking; reading; writing; attending social gatherings with friends and family; making music; and attending church. He also claims that he no longer engages in housekeeping activities like dishwashing, sweeping, vacuuming, and cleaning, or travelling out of town to visit friends and family.
23The applicant argues that as a result of the exacerbation of his pre-accident injuries, he is incapable of performing substantially all of his pre-accident activities. The applicant also argues that in analyzing the applicant’s pre-accident activities and post-accident activities, more weight should be given to the five activities that were the most important to the applicant, that is, his relationship with his children, reading, writing, going to church, and walking. The applicant relies on S.B. v. Aviva General Insurance Company, 2021 CanLII 2055, Sookram v. Zenith Insurance Company (ON LAT), 2021 CanLII 13201 (ON LAT) (“Sookram”), and 17-009121 v. Toronto Transit Commission, 2019 CanLII 27902 (ON LAT).
24The applicant referred to several medical records during the hearing, and in his closing submissions, he primarily relied on a psychological assessment dated November 9, 2023 completed by Dr. Pushpa Kanagaratnam, psychologist, a functional capacity evaluation report dated November 17, 2023 completed by Atila Balaban, an exercise physiologist, and a physiatry report dated December 11, 2023 completed by Dr. Veronica Kekosz. The applicant also relies on an OCF-3 dated September 15, 2021 completed by Dhara Kathari, a physiotherapist at Healing Touch Ajax Inc.
25In response, the respondent submits that the applicant has not met his onus of demonstrating that he is entitled to NEB.
26The respondent submits that the applicant did not submit a completed OCF-3 until September 15, 2021. The respondent notes that pursuant to s. 12(3) of the Schedule, the applicant is not entitled to NEB for the first four weeks after the accident and beyond 104 weeks after the accident. The respondent also notes that pursuant to ss. 36(2) and 36(3) of the Schedule, the applicant is not entitled to NEB for any period until an OCF-3 has been submitted.
27The respondent further submits that the only OCF-3 submitted by the applicant during the period of eligibility indicated that the applicant did not suffer from a complete inability to carry on a normal life. The respondent argues that failing to submit a qualifying OCF-3 within the period of eligibility is fatal to the applicant’s claim for NEB. The respondent relies on Valentine v. AIG Insurance, 2022 CanLII 75153 (ON LAT) (“Valentine”), K.D. v. Jevco Insurance, 2019 CanLII 126100 (ON LAT) (“K.D.”), and Boutros v. Economical Insurance Company, 2023 CanLII 98418 (ON LAT) (“Boutros”).
28The respondent also submits that the applicant has failed to prove that he suffers from a complete inability to carry on a normal life as a result of the accident. The respondent denies that there was a meaningful change in the applicant’s activities post-accident and submits that the applicant has not demonstrated that he has continuously been prevented from engaging in his pre-accident activities. Further, the applicant’s evidence regarding his ability to engage in his pre-accident activities is vague at best, and it is not corroborated by the medical evidence.
Applicability of ss. 36(2) and 36(3) of the Schedule
29I find that the respondent is not precluded from relying on ss.36(2) and 36(3) of the Schedule as part of its defence to the applicant’s claim for NEB.
30The applicant argues that as a matter of natural justice, the respondent should be precluded from relying on ss. 36(2) and 36(3) of the Schedule in this proceeding. The applicant notes that the respondent did not rely on these provisions in its Response by an Insurance Company to an Injured Person’s Application for Auto Insurance Dispute Resolution under the Insurance Act (“Response”) dated September 11, 2023 and states that he has been taken by surprise by the respondent’s position at the hearing.
31The applicant submits that he has been prejudiced by the respondent’s lack of notice and claims that he did not have the opportunity to provide a reasonable explanation for the late delivery of his OCF-3 under s. 34 of the Schedule.
32The applicant also argues that although the respondent included case law relating to the impact of the late delivery of the OCF-3 in advance of the hearing, it is not his role to decipher the respondent’s position. Further, in one of the cases that appear in the respondent’s brief of authorities, specifically Boutros, the issue of the late delivery of the OCF-3 was addressed as a preliminary issue, and the applicant had notice.
33In response, the respondent argues that its reliance on the Schedule should not take the applicant by surprise as the Schedule is the governing legislation for claims for accident benefits. Further, it is well established that the applicant is not entitled to NEB for any period when an OCF-3 has not been submitted. The respondent relies on Valentine, K.D., and Boutros. The respondent also argues that there is no authority before the Tribunal to support that the respondent is precluded from relying on the Schedule in defending the applicant’s claim for NEB.
34I do not find that the applicant has been taken by surprise by the respondent’s defence to his claim for NEB, and I fail to see how I can make a determination on the applicant’s entitlement to NEB without considering the timing of the submission of his OCF-3 and the applicability of ss. 36(2) and 36(3) of the Schedule.
35I find that the applicant knew or ought to have known that the submission of his OCF-3 was untimely and that there were consequences for his non-compliance with the Schedule. Specifically, in a letter dated April 27, 2021, the respondent acknowledged receipt of a completed OCF-1 and advised the applicant that it had not yet received an OCF-3. At that time, the respondent referred to ss. 36(2) and 36(3) of the Schedule and informed the applicant that an OCF-3 must accompany an application for NEB and that NEB is not payable until a completed OCF-3 is submitted. According to a letter dated October 7, 2021, the respondent received the applicant’s completed OCF-3 on September 21, 2021. Both parties included these letters in the evidentiary record.
36I further find that the applicant had the opportunity to address the issue of the late delivery of his OCF-3 at the hearing and failed to do so. The applicant had the opportunity to provide evidence on whether he had a reasonable explanation for the delay in submitting the OCF-3 during his examination in chief and on re-examination. The applicant opted not to adduce this evidence in his examination in chief, and he did not conduct a re-examination.
37Accordingly, I find that the respondent is not precluded from relying on ss. 36(2) and 36(3) of the Schedule.
The applicant is not entitled to NEB for the period of March 26, 2021 to September 20, 2021
38I find that the applicant has failed to demonstrate, on a balance of probabilities, that he is entitled to NEB of $185.00 per week for the period of March 26, 2021 to September 20, 2021. The applicant failed to meet his evidentiary burden to establish that he complied with the statutory requirements to apply for NEB for the period prior to September 21, 2021, and he failed to demonstrate that he had a reasonable explanation for the delay under s. 34 of the Schedule.
39As indicated above, the applicant did not submit his OCF-3 until September 21, 2021. As such, pursuant to s. 36(3) of the Schedule, the applicant is not entitled to NEB for any period prior to submitting his OCF-3.
40Accordingly, given the applicant’s late delivery of his OCF-3 and his lack of reasonable explanation for the delay, the applicant is not entitled to NEB for the period of March 26, 2021 to September 20, 2021.
The applicant is not entitled to NEB for the period of September 21, 2021 to February 26, 2023
41I find that the applicant is not entitled to NEB of $185.00 per week for the period of September 21, 2021 to February 26, 2023 as he has not demonstrated, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of the accident.
42I find that the evidence supports that prior to the subject accident, the applicant suffered from a complete inability to carry on a normal life as a result of the injuries he sustained in the 2017 accidents. Indeed, the applicant submitted two OCF-3s relating to the 2017 accidents. The first OCF-3 is dated October 12, 2017, and it was completed by Dr. Krishna Patel, chiropractor. Dr. Patel concluded that the applicant met the test for NEB and noted that “[t]his individual has limited ability to bend, lift, carry, push, and pull. These physical impairments significantly limit their ability to perform most or all of their activities of daily living.” Dr. Patel later completed a second OCF-3 dated May 27, 2019, and maintained that the applicant met the test for NEB. Dr. Patel further noted that “[t]his patient’s occupational demands, daily life, general mobility/gait, caregiving, functional [range of motion], home chores, and [activities of daily living] are all impaired at the present time due to their acute/severe presentation.”
43I further find that the evidence supports that the applicant does not suffer from a complete inability to carry on a normal life as a result of the subject accident. In the present case, the applicant did not submit a qualifying OCF-3 during the period of eligibility for NEB. Rather, the OCF-3 dated September 15, 2021 indicates that he does not suffer from a complete inability to carry on a normal life, and no further OCF-3 was submitted within 104 weeks after the accident. As a result, the applicant is not entitled to NEB from September 21, 2021 to February 26, 2023 (see: Valentine, at para 18).
44The evidentiary record lacks evidence to support a finding that the applicant suffers from a complete inability to carry on a normal life as a result of the accident. Indeed, there is no evidence that any of the applicant’s assessors expressed an opinion regarding whether the applicant meets the NEB test. Further, none of the applicant’s assessors conducted a meaningful analysis of the applicant’s pre-accident and post-accident activities, as required by Heath. Indeed, Dr. Friedlander’s report was specifically prepared in relation to the September 20, 2017 accident and does not mention the subject accident. While the reports of Dr. Kanagaratnam, Dr. Kekosz, and Mr. Balaban mention the subject accident, no distinction is made between the applicant’s ability to engage in his activities prior to the 2017 accidents and his ability to engage in activities after the 2017 accidents but prior to the subject accident.
45Although the applicant testified that there was a meaningful change between his pre-accident activities and his post-accident activities, I find the applicant’s oral testimony inconsistent with what he reported to various assessors and treatment providers. Further, while the applicant claimed that he recalled the details of his pre-accident activities and his post-accident activities during his direct examination, when factual inaccuracies were put to him on cross-examination, the applicant testified that he did not review the reports in the evidentiary record for factual accuracy, that he did not recall what he reported to various assessors and treatment providers, and that he had difficulty recalling his medical history in the months leading up to the subject accident. As such, I place less weight on his oral testimony.
46The applicant testified that there was meaningful change between his pre-accident and post-accident activities, and relying on Sookram, he argues that an applicant will be deemed incapable of performing substantially all of the pre-accident activities if they are found to be incapable of performing at least 50% of their pre-accident activities. However, as outlined below, the evidence supports that the applicant is capable of performing the majority of his pre-accident activities, albeit at a lesser frequency.
47The applicant identified 10 activities in which he claims he engaged in prior to the accident: spending time with his children, walking, reading, writing, attending church, housekeeping activities, social gatherings, making music, grocery shopping, and cooking. He also testified that his most important activities prior to the accident are the first five activities listed above.
48With respect to spending time with his children, the applicant testified that prior to the accident he saw his youngest child about ten times per month, he saw his second youngest child at least once per week, and he spoke to his two oldest children two to three times per month. He further testified that following the accident, he saw his youngest child once or twice per month, that he saw his second youngest child up to two times per month, sometimes not at all, and that he spoke to his two oldest children once per month or not at all.
49However, there is insufficient evidence to corroborate the applicant’s oral testimony to support the extent to which he was involved in his children’s lives prior to the accident. The applicant provided limited and inconsistent information to his assessors regarding his relationship with his children. Specifically, while the applicant testified that he had four children, and that his two oldest children reside in the United States of America, and the two youngest reside in Canada, the applicant inconsistently reported to assessors the number of children he has and where they reside. Indeed, several assessors, including Dr. Kekosz, Mr. Baladan, Dr. Kanagarantnam, and Dr. Friedlander, indicated that the applicant only had three children. Also, although the applicant’s treating psychiatrist, Dr. Uchenna Nwosu, noted that the applicant had four children, she also understood that three of those children resided in the United States of America, and only one resided in Canada.
50The applicant did not discuss his relationship with his children with his assessors in great detail. He told Dr. Friedlander that he periodically sees his second youngest child, but he did not indicate whether this change occurred before or after the subject accident. He also told Dr. Kanagaratnam that he used to see his youngest child once a week when his partner would come over with him, but he now sees his son once or twice a month because his partner does not come over as often. It is also noteworthy that he is no longer romantically involved with his partner. As such, there is insufficient evidence to corroborate that the change in the frequency of the applicant’s communication with his children is as a result of the subject accident. Further, the evidence supports that the applicant continues to have a relationship with his children.
51With respect to walking, the applicant testified that prior to the accident, he walked ten to twelve times per month, and that since the accident, he only walks four times per month. The applicant reported to Dr. Friedlander that since the September 2017 accident, he has been able to walk, but he cannot run. However, there is insufficient evidence to corroborate that the change in the frequency of the applicant’s walks is as a result of the accident. Further, the evidence supports that the applicant continues to perform this activity, albeit less frequently.
52With respect to reading, the applicant testified that prior to the accident, he read a book every month and a half to two months, and since the accident, he does not read at all. The applicant reported to Dr. Friedlander that since the September 2017 accident, he has trouble concentrating when he reads. He also told Dr. Kekosz that he is no longer interested in reading. As such, while the applicant no longer performs this activity, there is insufficient evidence to corroborate that this is as a result of the subject accident.
53With respect to writing, the applicant testified that prior to the accident, he would write every month or two, or twice every month or two, and since the accident, he does not write at all. The applicant advised Dr. Kekosz that he was no longer interested in writing. As such, while the applicant no longer performs this activity, there is insufficient evidence to corroborate that this is as a result of the subject accident.
54With respect to attending church, the applicant testified that prior to the accident, he attended church two to three times per month, and since the accident, he attends church once a month or not at all. The applicant did not report engaging in this activity to any of his assessors, as such, there is no evidence to corroborate that the change in frequency is as a result of the accident. Further, the evidence supports that the applicant continues to perform this activity, albeit less frequently.
55With respect to housekeeping activities, the applicant testified that prior to the accident, he did a bit of dishwashing, sweeping, vacuuming, and dusting four to six times per month, but that his mother was primarily responsible for doing the cleaning and sometimes he would hire help. Since the accident, the applicant does not do any dishwashing, sweeping, vacuuming, or cleaning, and he either hires help, or family members help. The applicant reported to Dr. Friedlander that he no longer cleans the house. He reported to Dr. Kanagaratnam that following the 2017 accidents, his partner took care of house chores, and now either his mother does it or he hires help. He told Dr. Kekosz that his mother does the majority of the housekeeping. As such, there is insufficient evidence to corroborate that there has been a meaningful change in the applicant’s ability to perform this activity as a result of the accident.
56With respect to social gatherings, the applicant testified that prior to the accident, he would catch up with friends once or twice per month, and he would travel out of town to visit friends and family once or twice every 2-3 months. Since the accident, he does not socialize with friends or travel out of town. The applicant told Dr. Kanagaratnam that he stopped socializing and interacting with friends, and although he attempted to reconnect with friends at the time of the accident, his social life was non-existent. As such, while the applicant no longer performs this activity, there is insufficient evidence to corroborate that this change is as a result of the subject accident.
57With respect to making music, the applicant testified that prior to the accident, he made music once or twice per month, and that since the accident, he does not make music anymore. The applicant reported to Dr. Friedlander that since the September 2017 accident, he rarely plays the piano. As such, while the applicant no longer performs this activity, there is insufficient evidence to corroborate that this change is as a result of the subject accident.
58With respect to grocery shopping, the applicant testified that prior to the accident he was limited in his ability to go grocery shopping, that he did groceries up to three times per month, and that he often had his groceries delivered, and that since the accident, he goes grocery shopping once per month. The applicant advised Dr. Kekosz that he goes grocery shopping with his mother. As such, the evidence supports that the applicant continues to perform this activity, and there is insufficient evidence to corroborate that there has been a meaningful change in his ability to engage in this activity as a result of the accident.
59With respect to cooking, the applicant testified that prior to the accident, he cooked simple meals four to six times per month, and that since the accident, he cooks once per month. The applicant previously advised Dr. Friedlander in connection with the September 2017 accident that he was able to cook simple meals and to defrost frozen food. As such, the evidence supports that the applicant continues to perform this activity, albeit less frequently, and there is insufficient evidence to corroborate that this change is as a result of the accident.
60Accordingly, the applicant is not entitled to NEB.
Interest
61Interest applies on payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no NEB is overdue, no interest is payable.
ORDER
62For the reasons outlined above, I find that the applicant is not entitled to NEB nor interest.
63The application is dismissed.
Released: September 16, 2024
Ludmilla Jarda
Adjudicator