Lee v. Aviva General Insurance, 2025 CanLII 10777

Citation: Lee v. Aviva General Insurance, 2025 CanLII 10777

Licence Appeal Tribunal File Number: 22-007215/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:

Ho-Hee Lee

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Thomas Long, Counsel

HEARD: By written submissions

OVERVIEW

1Ho-Hee Lee, the applicant, was involved in an automobile accident on July 7, 2021, 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 the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Before the July 7, 2021, accident, the applicant was involved in a serious accident on July 1, 2010. The July 1, 2010, accident resulted in significant injuries to the applicant and, subsequently, the applicant was deemed to be catastrophic impaired.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from June 22, 2022, to date and ongoing?

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

RESULT

4The applicant is not entitled to a NEB or interest.

ANALYSIS

The applicant is not entitled to Non-Earner Benefits (NEB)

5I find that the applicant has failed to meet the necessary test found in the Schedule and therefore does not qualify for NEB entitlement.

6Section 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

7The applicant relies on the OT report from Robert Campos which determined that the applicant suffered from injuries significant enough to meet the test for NEB. The respondent relies on the reports of Dr. Platnick, Dr. Cho and Dr. Weinstock, which found that the applicants post accident activities of daily living had not significantly been altered due to the accident.

8The applicant argues he “has significant limitations in performing housekeeping/home maintenance activities hence a housekeeper is coming to his home once per week, 3-4 hours each time, to help the applicant and his wife with general cleaning, laundry, making the bed, washing dishes and grocery shopping at times.” The applicant also argues that since the accident, the applicant has suffered continual back, leg, knee, and shoulder pain along with fatigue, anxiety, headaches, and sleep disturbance.

9The respondent argues that the applicant has not been prevented from their pre-accident daily activities as a result of the subject accident. The respondent argues that the need for a housekeeper is as a result of injuries sustained in the July 1, 2010, accident and not the subject accident. The respondent also argues that the applicant’s advanced age would also lead to a natural need for some help around the home. The respondent further argues that the applicant has not been able to demonstrate a change in pre-accident and post-accident daily functioning necessary to meet the test in Heath.

10I agree with the respondent and prefer their evidence. The applicant has a significant pre-accident history stemming from his previous accident and has failed to demonstrate how the subject accident led to the complete inability to carry on a normal life. The applicant identified that they now suffer from disturbed sleep, anxiety, as well as leg, shoulder, and back pain. The applicant argues that because of the accident they ceased all social and recreational activities but can attend church services. However, based on the evidence presented it is clear that the applicant is able to drive, prepare meals and do household chores. Furthermore, the conclusion from Occupational Therapist Campos is that “During this assessment, Mr. Lee demonstrated sufficient mobility, range of motion, strength as well as cognitive and psychosocial functioning to resume his normal activities of daily living, such as personal care tasks, driving, and most housekeeping and leisure activities, while using principles of energy conservation techniques, task modification, and proper body mechanics.” It is unclear what has significantly changed in the applicant’s life post-accident. Based on the evidence presented, the applicant does not have a complete inability to carry on a normal life and therefore does not meet the test for NEB.

11The applicant has not been able to demonstrate that they have an impairment that continuously prevents them from engaging in all the activities of daily living which they had ordinarily engaged in prior to the accident. Therefore, the applicant has not been able to meet the NEB test found in Heath and the request for non-earner benefits is denied.

Interest

12Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

ORDER

13I find that the applicant is not entitled to NEBs or interest, and the application is dismissed.

Released: February 10, 2025

__________________________

Gareth Neilson

Adjudicator