Licence Appeal Tribunal File Number: 23-013990/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:
Salam Ahmed
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Melissa Shea
APPEARANCES:
For the Applicant:
Alexander Lempp, Counsel
For the Respondent:
Alanna Rozalowsky, Counsel
HEARD:
In Writing
OVERVIEW
1Salam Ahmed, the applicant, was involved in an accident on September 30, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was driving when he was struck in the rear of his vehicle.
3A notice of motion was filed by the respondent with the Tribunal on July 10, 2024 to dismiss the application as abandoned for failure to make submissions on the preliminary issue hearing. A motion order was issued by the Tribunal on July 10, 2024, denying the respondent’s request.
4A hearing was held for the preliminary issue of whether the applicant was barred from proceeding to a hearing as the OCF-3 did not support entitlement to the non-earner benefit (“NEB”), and a decision was issued on July 16, 2024 that the applicant could proceed.
ISSUE
5The issue in dispute is:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 24, 2021, to ongoing?
6The respondent withdrew the second preliminary issue in dispute, added by motion order dated May 14, 2024 , which was to be heard with this substantive issue hearing.
RESULT
7The applicant is not entitled to NEB of $185.00 per week from December 24, 2021 to ongoing.
ANALYSIS
8I find that the applicant has not satisfied his onus, on a balance of probabilities, to prove he suffers from a complete inability to carry on a normal life as a result of the accident.
9Section 12(1) of the Schedule provides that an insurer shall pay an 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.
The applicant submits he is entitled to NEB
10The applicant submits that he has suffered from catastrophic, psychological and biopsychological injuries as a result of the accident. The applicant submits that he was not working at the time of the accident.
11The applicant relies on the following evidence in support of entitlement to NEB:
i. Disability Certificate, OCF-3, December 24, 2021 by Denise Merion, Nurse Practitioner;
ii. Clinical notes and records, Dr. Denise Marion;
iii. A lumbar MRI, noted by Denise Marion, which indicates a horizontal tear in the posterior horn of the medial meniscus and significant cartilage degeneration in the medial patellar facet, medial trochlea, and medial femoral condyle, and a multiloculated Baker's cyst extending 7.5 cm and signs of suprapatellar/ quadriceps fat pad impingement. The applicant submits these findings suggest a combination of degenerative meniscal and chondral injuries;
iv. Clinical notes, Quality Care Physio;
v. Clinical notes from pro physio and sport medicine centers, March 28, 2022 and April 19, 2022;
vi. Clinical Notes and records, Ottawa hospital, October 7, 2021;
vii. OCF-1, from October 25, 2021, which stated the applicant was unemployed at the time of the accident; and
viii. Motor vehicle collision report dated September 30, 2021;
ix. The respondent’s Election of Non-Earner Benefit form OCF-10 dated October 26, 2021;
x. The respondent’s Explanation of Benefits form dated March 9, 2022; and
xi. Respondent’s denial letter dated March 9, 2022.
The respondent does not agree the applicant is entitled to NEB
12The respondent submits that the applicant is not entitled to NEBs, as he does not suffer a complete inability to carry on a normal life as a result of the accident, and the applicant has not provided evidence that he is entitled to an NEB for any period prior to August 8, 2023 and beyond the 104 week mark of September 29, 2023.
13The respondent further submits that the applicant has not provided any submissions on his substantive entitlement to NEBs. The applicant has failed to identify the activities in which he normally engaged before the accident, or evidence to demonstrate he sustained an accident-related impairment that prevents him post-accident from engaging in those activities. The respondent further submits that the OCF-3 dated December 24, 2021 does not support entitlement to a Non-Earner Benefit. It does not contest that the applicant was not working at the time of the accident.
14The respondent relies on the following evidence:
i. A Disability Certificate, OCF-3, dated December 24, 2021, completed by Denise Marion, nurse practitioner, which does not indicate the applicant suffers a complete inability to carry on a normal life;
ii. An Explanation of Benefits dated January 27, 2022 confirming receipt of the above OCF-3 and requesting further documentation;
iii. An Explanation of Benefits dated March 9, 2022 advising that the OCF-3 dated December 24, 2021 did not support that the applicant suffered from a complete inability to carry on a normal life and was therefore not eligible for a Non-Earner Benefit
iv. A Disability Certificate, OCF-3, dated August 7, 2023, completed by Dr. Jamal Alaloul chiropractor of Oxford Spine Center, indicating the applicant suffers a complete inability to carry on a normal life for the anticipated duration of more than 12 weeks; and
v. Explanation of Benefits dated January 4, 2024 in which the applicant was further advised that he was not entitled to receive a Non-Earner Benefit prior to August 8, 2023 and beyond the 104 week mark September 29, 2023.
The applicant has not proven he is entitled to NEB
15I have reviewed the submissions of the applicant, even though they frequently do not make specific reference to the evidence and authorities by tab and page number, as required in the Case Conference Report and Order.
16Upon review of the submissions, I note that the applicant did not make submissions on his pre- and post-accident activities, therefore it is not possible for me to determine his normal life pre- and post-accident as required by Heath. Therefore I find that the applicant has not proven on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of the accident. He is not entitled to NEB.
17While the applicant submits that he has suffered from catastrophic, psychological and biopsychological injuries as a result of the accident and was not working at the time of the accident, he has not provided submissions or evidence of his activities per-accident, or how his accident-related injuries have resulted in a complete inability to carry on a normal life.
18Further, while the applicant indicates he was not working at the time of the accident, and points to clinical notes and records that he indicates are evidence of accident-related injuries, this is not sufficient to meet the test for NEB. As set out in Heath, a determination of entitlement to NEB focuses on a comparison of the applicant’s pre- and post-accident activities. In the absence of evidence of pre- and post-accident activities, the applicant has not met his burden.
19As the applicant has not made submissions on his activities pre-and post- accident, I find that the applicant has not established entitlement to NEBs for the period in dispute.
ORDER
20I order that:
i. The applicant is not entitled to NEBs of $185.00 per week from December 24, 2021, to ongoing.
Released: December 8, 2025
Melissa Shea
Adjudicator