Citation: Yonas v. Pembridge Insurance Company, 2025 ONLAT 24-001207/AABS

Licence Appeal Tribunal File Number: 24-001207/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:

Eman Abu Yonas

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Joshua Gautreau, Counsel

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Eman Abu Yonas, the applicant, was involved in an automobile accident on October 24, 2022, 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, Pembridge Insurance Company, 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. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 30, 2022 ongoing?

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

3In her submissions the applicant has withdrawn issue iii) for $2,834.10 for optometric services, issue iv) for $2,782.05 for psychological services, issue v) for $2,023.03, $3,622.73, and $1,525.84 for chiropractic services, and issue vii) for an award. As such, I will not address these issues.

RESULT

4The applicant is subject to the MIG.

5The applicant is not entitled to a non-earner benefit.

6The applicant is not entitled to interest.

Procedural ISSUES

7The applicant submits in her reply submissions that the respondent exceeded the page limit as mandated in the Case Conference and Report Order (“CCRO”), released July 8, 2024. The applicant submits that any submissions beyond page 12 should not be considered. The applicant did not state what prejudice is caused by the excess pages.

8The respondent’s submissions are 14 pages, including the first three pages containing a cover page, an index, and an index tab. Therefore, the submissions are 11 pages in length.

9I will not exclude the respondent’s submissions beyond page 11 as requested by the applicant as it would prevent the respondent from addressing the non-earner benefit and interest in dispute which would significantly prejudice the respondent. The applicant has not demonstrated how the additional page resulted in prejudice and had an opportunity to make submissions on reply.

ANALYSIS

Application of the Minor Injury Guideline

10I find the applicant has not met her onus in demonstrating her pre-existing condition prevents maximal recovery.

11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

12The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

13The applicant submits she requires treatment outside of the MIG because she has a pre-existing anxiety, psychomotor retardation and a history of psychological trauma.

14The respondent submits the applicant has not met her onus to demonstrate she has a pre-existing psychological condition and that her accident-related impairments do not prevent her from achieving maximal recovery.

Does the applicant have pre-existing conditions that prevent maximal recovery within the MIG?

15I find the applicant has not met her onus in demonstrating her per-existing conditions prevent maximal recovery within the MIG.

16The applicant relies on the clinical notes and records (“CNRs”) of Dr. Jena Zakhary, family doctor, the psychiatry consultation prepared by Dr. Uchenna Nwosu, psychiatrist, and the Tribunal’s decision in 18-00007 v. Cooperators General Insurance Company, 2019 CanLII 14395 (ON LAT).

17I find the first part of the test in section 18(2) is met. The applicant has a documented pre-existing condition documented in the CNRs of the family doctor. In November 2019, her family doctor, Dr. Zakhary, initially diagnosed her with depression. The applicant visited with her doctor again in January 2020, April 2020, and October 2020 for depression and some psychological counselling. In April 2021 Dr. Zakhary notes the applicant has some anxiety due to an incident at the mall from 2019.

18I find, however, that the second part of the test in section 18(2) has not been met. The applicant has not provided medical evidence that the pre-existing condition will prevent her from achieving maximal recovery from the minor injury.

19The applicant argues her pre-existing psychological condition was aggravated due to the accident and that prevents her from recovering fully. Her family doctor notes on November 16, 2022 that the applicant was in an accident and experienced “generalized lower leg pain” and she was experiencing stress due to an incident at the mall involving her children three years prior in 2019. On March 10, 2023, some five months after the accident, the CNRs note the applicant has pain and tightness in chest, however, the notes do not corroborate that it is accident related.

20I find that Dr. Nwosu’s psychiatry consultation does not note any accident-related injuries or impairments. In my view, neither the family doctor’s CNRs nor Dr. Nwosu’s psychiatry consultation corroborate the claim that she cannot achieve maximal recovery within the MIG.

21The applicant argues an increase in psychological symptoms from a pre-existing psychological condition is itself a separate accident-related injury that falls outside of the MIG and relies on 18-00007 v. Co-operators General Insurance Company, 2019 CanLII 14395 (ON LAT). The distinguishing feature here is that the CNRs of the family doctor do not corroborate the applicant’s claim that she suffered accident-related psychological injuries or that her injuries prevent her from achieving maximal recovery within the MIG.

22I find on a balance of probabilities the applicant has not met her burden to prove her pre-existing condition will prevent her from achieving maximal recovery under the MIG.

Is the applicant entitled to a non-earner benefit?

23I find the applicant has not met her burden to demonstrate she is entitled to a non-earner benefit for the period in dispute.

24Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit 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) 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 Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

25The applicant submits her activities of daily living have been affected since the accident. She submits her pre-accident activities include time with her children, going to the park for walks, and shopping. The applicant relies on the OCF-3 prepared by Dr. Masha Gordanpour, chiropractor, the CNRs of the family doctor, and the section 25 psychological report prepared by Dr. Leon Steiner, psychologist.

26The respondent submits that the applicant has not met her onus, and she does not suffer a complete inability to carry on a normal life. The respondent relies on the section 44 physiatry report prepared by Dr. Melody Nguyen, physiatrist, the family doctor’s CNRs, and the section 44 psychological assessment report prepared by Dr. Tatiana Dumitrascu, psychologist.

27The OCF-3 dated October 27, 2022, notes the applicant was not working at the time of the accident or enrolled in an education program, and she is a caregiver. In the OCF-3 the applicant’s injuries include injury of muscle and tendon at neck level, thorax level, abdomen, lower back, and pelvis, shoulder and upper arm level, headache, sleep and anxiety disorder. In Part 6 Disability Tests and Information, Dr. Gordanpour indicates “N/A” whether the applicant is substantially unable to perform essential tasks of her employment and “N/A” whether she can return to work or modified hours and/or duties. Dr. Gordanpour indicates “Yes” the applicant suffers a complete inability to carry on a normal life, and “Yes” for a complete inability to engage in caregiving activities, and “Yes” for a complete inability to perform housekeeping and home maintenance services with an anticipated duration of 9 to 12 weeks.

28Dr. Steiner’s section 25 report dated August 29, 2024 notes the applicant relies on her husband and daughters for assistance with cleaning, laundry and cooking, and she is less interested in social interactions. However, Dr. Steiner notes she remains independent with her personal and self-care routines. In my view, the applicant continues to carry on a relatively normal life, engaging in her pre-accident activities, such as caring for her children, and performing housekeeping tasks, with assistance from her family.

29I find the CNRs of Dr. Zakhary do not support the applicant’s claim that she suffers a complete inability to carry on a normal life. The applicant’s pre-accident activities were time with her children, going for walks and going to the park. The only accident-related injuries noted in the CNRs were “generalized lower leg pain”. Dr. Dumitrascu’s section 44 report dated March 22, 2024 and Dr. Nguyen’s section 44 report dated April 27, 2023 note the applicant “did not have any objective musculoskeletal findings … that results in any formal limitations or restrictions in her activities of normal life.”

30I assign weight to the section 44 psychology report prepared by Dr. Dumitrascu and the section 44 physiatry report prepared by Dr. Nguyen because the reports provide a comparison of the applicant’s pre- and post-accident activities that note the applicant is independent in her personal care tasks and returned to her activities of daily living. Dr. Dumitrascu notes the applicant cooks and cleans for the family and her husband performs housekeeping tasks, and she “has no restrictions from engaging in her usual activities of daily life.” Dr. Nguyen notes that the applicant has resumed most of her normal household tasks and she “did not suffer a complete inability to carry on a normal life as a result of the accident.”

31I find the applicant has not demonstrated on a balance of probabilities that she has suffered a complete inability to carry on with a normal life. Therefore, I find the applicant has not met her burden of proving she is entitled to a non-earner benefit for the period in dispute.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

ORDER

33The applicant is subject to the MIG.

34The applicant is not entitled to non-earner benefits.

35As there are no overdue benefits, the applicant is not entitled to interest.

36The application is dismissed.